P. v. Mayhan
Filed 11/7/13 P.
v. Mayhan CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
HAYWARD MAYHAN,
Defendant and Appellant.
F065200
(Super.
Ct. No. 07CM7436)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Joseph
Shipp, 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, Carlos A. Martinez and Jamie A.
Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant
Hayward Mayhan filed an appeal from an order denying his motion for substitute
counsel under People v. Marsden
(1970) 2 Cal.3d 118 (Marsden)
following a remand by this court. We
affirm.
FACTS AND PROCEDURAL HISTORY
On October 15, 2006, while a
prisoner at Corcoran, appellant thrust an inmate-manufactured spear at two
officers when they attempted to serve him dinner in his cell.
As a result of the incident,
appellant was charged in November of 2007 with
attempted murder of a public official (§ 217.1, subd. (b)), two counts of
assault with a deadly weapon by a prisoner (§ 4501), aggravated battery by
a prisoner (§ 4501.5); and custodial possession of a weapon (§ 4502,
subd. (a)).
Prior to trial, in February of 2008,
the trial court suspended criminal proceedings and ordered appellant evaluated
pursuant to section 1368. In April of
2008, the trial court found appellant mentally competent and reinstated
On July 21,
2008, the trial court denied appellant’s first Marsden motion, and on November 12, 2008, denied his second
On December 2, 2008, the jury was
sworn. The following day, the trial
court denied appellant’s third Marsden motion. On December 5, 2008, the jury found appellant
guilty as charged and found that the attempted murder was willful, deliberate,
and premeditated (§ 664, subds. (e), (f).)
In a bifurcated proceeding, the
jury found strike and serious felony allegations true.
On January
5, 2009, the trial court denied appellant’s fourth Marsden motion. That same
day, the trial court appointed new counsel to investigate whether there were
grounds to file a motion for new trial. On March 4, 2009, substitute counsel informed
the trial court that she had reviewed the transcripts of trial, appellant’s previous
new trial motion, and a declaration provided by appellant and found no legal
cause for a new trial. The trial court
denied the motion for new trial. On
March 20, 2009, the trial court denied appellant’s fifth Marsden motion. That same
day, the trial court denied probation and sentenced appellant to state prison
for an indeterminate term of 104 years-to-life.
Appellant filed
an appeal alleging that the trial court erred when it excluded all of his
defense witnesses; declined to initiate subsequent competency proceedings;
denied his Marsden motions; and
failed to give necessity defense
name="_ftnref5" title="">[4] and attempted voluntary manslaughter
instructions. Appellant also argued defense
counsel was ineffective for having him testify in narrative form.
finally argued cumulative error and various sentencing errors.
On March
17, 2011, this court found error occurred during the January 5, 2009,
sentencing errors. We conditionally
reversed and remanded the matter and ordered the trial court to conduct a
complaints that he had mental health issues at the time of the incident. If the trial court found that appellant had
shown that a failure to replace counsel would substantially impair his right to
assistance of counsel, the trial court “shall appoint new counsel to represent
him and shall entertain such applications as newly appointed counsel may make.†We found further that, if newly appointed
counsel makes no motion, or any motions made are denied, or if appellant’s Marsden
motion is denied, the court shall reinstate the judgment. In the event that the trial court reinstated
the judgment, this court ordered the trial court to prepare an amended abstract
of judgment indicating a total aggregate term of confinement of 91 years to life.
In accordance with this court’s
order, the trial court conducted a Marsden
hearing on April 25, 2012. On May 18,
2012, the trial court denied appellant’s Marsden
motion and reinstated the corrected judgment. At issue in this appeal is the trial court’s
denial of appellant’s April 25, 2012, Marsden
motion. We find no error and affirm.
DISCUSSION
Before we discuss the April 25,
2012, Marsden hearing at issue, we
repeat what occurred at the January 5, 2009, Marsden hearing, appellant’s fourth such motion, and our finding on
that hearing.
January 5, 2009,
On January
5, 2009, following conviction, defense counsel
advised the trial court that appellant wanted a new attorney to investigate a
motion for new trial. Appellant confirmed
this request. The trial court determined
that appellant was requesting a Marsden
hearing.
During the
subsequent closed-door hearing, appellant complained that defense counsel had
not called four witnesses “prudent†to his case; he claimed he was suffering
from “mental health issues†and “extreme duress†at the time of the incident,
which was not brought out at trial; and that he and defense counsel had
communication issues and never agreed on the “direction†of appellant’s
defense. Specifically, appellant
complained at the hearing that he felt “there was no defense help in my case
with the exception of him arguing that, that of the weapon. During the time of the incident, I had mental
health issues. I was, believe if I’m not
mistaken, I was Triple CMS and doing counseling and on psychiatric-.†When the trial court responded, “So,†appellant
replied, “And none of this came up in my trial during that time and/or before
and after [that] I was under extreme duress.â€
The trial
court summarized appellant’s concerns as threefold: (1) that defense counsel
did not “come up with†a defense that was satisfactory to appellant; (2) that defense
counsel failed to argue psychiatric or psychological issues in the matter; and
(3) that appellant had “communication issues†with defense counsel. The court stated, “As far as [issues (1) and
(2)], the Court actually issued a ruling concerning whether or not some of
those issues could be brought into play as whether they were relevant, deeming
that they were not relevant in the matters.
[¶] … [¶] So the court only sees
the communication aspect.â€
When
defense counsel was asked to respond to appellant’s allegations, he submitted
on the issues, explaining he had “been through†these issues on more than one occasion
with appellant. Defense counsel also
thought the issues raised by appellant were “unreviewable†by him because they
involved a review of his own performance during trial, creating a
conflict.
The trial
court then denied appellant’s Marsden
motion, explaining that appellant had failed to reach the burden required for
the court to appoint new counsel for all purposes, but explained that it would
address appellant’s request for a new trial in open court.
Back on the
record, the trial court stated that defense counsel would not be expected to
investigate his own competency during trial with regard to appellant’s request
for new trial and asked appellant if he wished to pursue the motion on his
own. Appellant responded that he wanted
another attorney to review the motion.
After explaining that a new attorney would take the lead on
investigating the merits of such a motion, the court appointed another attorney
to do so.
In a
hearing two months later, the substitute attorney informed the trial court that
she had reviewed the transcripts of trial, the new trial motion, and a declaration
provided by appellant and found no legal cause for a new trial. However, neither the new trial motion nor
Mayhan’s declaration were part of the record.
Our review of the January 5,
2009, Marsden hearing
During the January
5, 2009, Marsden hearing, defense
counsel, responding to appellant’s assertion that defense counsel had failed to
pursue “mental health issues†appellant had been suffering from at the time of
the offenses, said that they had “been through this on more than one occasion.†The trial court also indicated it had
considered appellant’s mental health issues before. On appeal, appellant claimed that, in both
the pretrial Marsden hearings and the
competency proceedings, the focus of the trial court was on current trial
competency and not on defenses based on mental health issues at the time of the
offenses. As argued by appellant, his post
trial complaint about failure to pursue any mental health defense raised new questions
about defense counsel’s performance. Appellant
did note that his mental health background was briefly discussed during the
November 12, 2008, Marsden hearing,
when he complained that counsel did not respond to his request to have his “C
File†and “114A file†(which appellant described as his “mental health folderâ€)
copied and admitted into evidence.
Further discussion with appellant revealed that he did not want to admit
the files into evidence but rather have defense counsel review those files in
order to explain what led up to the incident that occurred. Defense counsel stated that he had “several
volumes of this case†and had spent “probably a hundred plus hours in reviewing
it,†although he did not specify whether the mental health file appellant mentioned
was included in that review.
Respondent
asserted contrarily that appellant’s complaint at the January 5, 2009,
health issues at the time of the incident had to be viewed in the context of
all of the proceedings and appellant’s constant insistence that defense counsel
failed to present a defense that his actions were the result of “extreme
duress.†As argued by respondent, appellant’s
attempt to assert the defense of duress, which the trial court found
unavailable and which was discussed on numerous occasions throughout the course
of the trial, included consideration of the “mental health issues†of which appellant
spoke on January 5, 2009. Thus, respondent
argued, those issues had been considered before.
We found
nothing in the record to show that the trial court ever, either at the January
5th hearing or at any time before, considered or requested defense counsel specifically respond to appellant’s assertion
that defense counsel failed to pursue mental health issues as a defense. Although the trial court, in response to appellant’s
complaint at the January 5th hearing, stated that it had already ruled on that
issue, it was not clear from the record whether the trial court was referring
to appellant’s assertions, to its earlier ruling, or if it mistakenly conflated
appellant’s mental health issues with the duress defense it had previously
ruled on. In any event, we found defense
counsel was never asked to respond to this particular concern.
make a record sufficient to show the nature of the defendant’s grievances and
the court’s responses to them. (
1362, 1368.) This, we found, the trial
court failed to do.
April 25, 2012,
At the April 25, 2012,
by stating that, as instructed by this court, the hearing would focus “only on appellant’s
complaints that he had mental health issues at the time of the incident†as
alleged during the January 5, 2009 Marsden
hearing.
Appellant
began by testifying that he had raised his mental health issues at the time of
the incident many times to defense counsel.
Appellant recounted his status in the mental health treatment facility
in prison and stated that he informed defense counsel that he wanted him to bring
appellant’s “C-file†and mental health file to court to be used as a “defens[e]
measure.†But appellant was frustrated
that defense counsel failed to do so.
According to appellant, he was on medication in 2006 when the crimes
occurred and he believed that should affect his defense. Appellant explained his mental health history
to the court prior to the crimes and explained that, at the time of the crimes,
he was “classified as mental health, and the status was Triple CMS, and … was
seeing clinicians, and the head chief, head psychs, and all that and … was on
psychotropic medication[.]†Appellant
claimed he had been on medication from “April 15, 2005 until 2008 or 2007;
2008, or something like that. 2006.†Appellant explained that when he first was
medicated, at Pelican Bay, he felt the effects for “maybe a week.â€
The trial
court then asked defense counsel about whether he had discussed appellant’s mental
health and considered it as a possible defense.
Defense counsel explained that, prior to the presentation of the defense
case, the trial court had denied the defense request to present witnesses on a
defense of necessity or duress. As such,
defense counsel explained that the two remaining options for appellant related
to his mental health history were sections 1368 (competency) and 1026 (insanity)
defenses. Defense counsel did not
believe a section 1368 defense was appropriate because appellant could
comprehend the actions taken against him and could communicate with
counsel. In fact, according to defense
counsel, appellant was able to articulate his theory of the defense “extremely
well, and was very adamant about it,†despite the fact that defense counsel
could not find supporting evidence for it.
According to defense counsel, although he and appellant disagreed “somewhatâ€
on the issue, defense counsel never believed that appellant “was unable to
assist counsel or suffered from a mental defect that would prevent him from
understanding the complications and the consequences of his particular situation
to the point of arising to a [section] 1368 proceeding at that time.â€
As for an
insanity defense pursuant to section 1026, defense counsel stated that he did
discuss the issue with appellant, but that appellant did not wish to enter an
insanity defense. Instead, appellant’s position
was always that he was forced to attack the officers based on his belief of
duress or necessity. Defense counsel,
who stated he had vast experience with patients on psychotropic medications,
explained that “[a]t no time did [appellant] present to me to be someone that
was so medicated that he was out of it.â€
Defense counsel noted this was evidenced by the fact that appellant had
planned the attack on the officers for some time based on his feeling of how
the officers were treating him.
The trial
court stated that it did not believe this court was looking at a section 1368
defense, but was focused more on counsel’s consideration of a section 1026
defense. Defense counsel again confirmed
that he had considered and discussed an insanity defense with appellant, but
elected not to go forward with it. Defense
counsel reiterated:
“I believe it was discussed with him early on. But, again, it was not his position that he
didn’t understand what was going on; [instead] that his actions were deliberate
in response to the provocation and threats and duress that he felt at the time.â€
In response
to the trial court’s question whether there had been a discussion as to the
medication appellant was taking or his claim that he was a “mental health designee,†defense counsel acknowledged that appellant was
“designated as Triple CMS at the time,†which was always a “red flag,†and he
had discussed those issues with appellant.
In all the times defense counsel spoke to appellant, although at certain
times he was taking some medication, defense counsel did not believe that appellant’s
thoughts or his ability to cooperate with defense counsel or reasonably move
forward were ever clouded by medication, “nor did it raise an issue in regards
to a 1026 insanity defense at the time of the defense.â€
The trial
court then asked defense counsel that, if there had been some issue that appellant
was unable to comprehend at the time of the incident, did defense counsel know “how
to go about asking the Court for doctors…â€
Defense counsel assured the trial court that he was “well versed†on the
issues of whether a section 1026 or 1368 proceeding was appropriate or whether
to request an “outside expert pursuant to [Evidence Code section] 730,†and
that he had had significant contact with doctors at the time. Defense counsel spoke with Dr. Estner
in regards to appellant’s fixation with particular issues, such as the issues
of duress and necessity.
The trial
court then asked appellant for comment. Appellant
maintained that “none of these issues†were ever addressed by defense counsel from
the time he was first assigned to the case up until the close of trial. Appellant claimed he only discussed the issue
in the context of speaking to a “female psychiatric specialist†who asked him
if he could “co-exist†with defense counsel.
But, according to appellant, she did not ask how he had felt at the time
of the incident or what medication he was on at the time.
When asked
by the trial court if he had told “them†how he “felt†appellant said,
“Yes. On numerous occasions, or I
thought I did. Maybe I was impaired at
the time .…†When asked how he felt
today, appellant stated that, although he had been shot in the head, over the
years he had managed “to deal with it,†but for the most part he felt competent
enough to understand what was going on.
When asked whether he was taking the same type of medication currently, appellant
stated, “No. I try to deal with it myself.â€
Appellant explained
again that when he was in Pelican Bay, “they shot me up, and this went on for
days.†When asked by the trial court if
this was before the trial, appellant stated that it was “before the incident
and, you know, it led up to that.†Appellant
stated that he was taking psychotropic medications “on and off until 2008.†According to appellant, he tried to tell defense
counsel that he was on medication and seeing clinicians at the time of the
incident. Appellant testified that he also
told defense counsel that he should be reviewing his “C-file†and “mental
health file,†and “these are loopholes that you need to … check into … for me
to have the best defense possible,†but that defense counsel ignored his
request. Appellant claimed he did this
at each meeting he had with defense counsel.
When asked
again by the trial court whether appellant had discussed the various possible
defenses with defense counsel, appellant stated he thought he did, “unless I
was somewhere else. And if I was
somewhere else, then I was mentally impaired then.†Appellant again reiterated his belief that,
if he was on medication when these incidents occurred, defense counsel should
have addressed that. Appellant stated
that the jury should have known that, even if he was not on medication at the
time of trial, he was at the time of the incident, as well as under psychiatric
care. Appellant thought that information
could have swayed a decision by the jury.
When asked
to respond, defense counsel stated that he had discussed with appellant the
fact that diminished capacity was not a defense in this situation, but that it
might be an issue on certain elements of the attempted first degree murder
charge. But appellant’s issue of intent
always went back to appellant’s belief that he had a defense of duress or
necessity. Defense counsel stated that
at no time did appellant express a wish to enter a plea of not guilty by reason
of insanity. As for his competence, defense
counsel stated that appellant was examined by several doctors, one of whom, Dr.
Geiger, examined him closest to the time of the incident and found him
competent.
The trial
court then asked defense counsel if, after reviewing appellant’s documentation
and the fact that he may or may not have been under medication at the time of
the incident, or may or may not have told him he wished to plead guilty by
reason of insanity, had defense counsel still considered an insanity plea. Defense counsel stated that he did, but that appellant
did not wish to do so. Instead appellant
wanted to proceed on finding supporting witnesses for the issue of duress or
necessity.
title="">[10]
Appellant insisted
that defense counsel at no time asked if he was interested in a plea for
temporary insanity due to mental health issues.
Appellant
then asked that the trial court look at various documents he brought with him
to the hearing attached to his written motion.
documents and stated that he was in possession of all of them. Included was Dr. Geiger’s report, which was
done as part of the section 1368 proceeding, in which the doctor opined that,
although appellant had a long history of mental illness, he was able to
communicate and speak with defense counsel in building a defense.
In a final argument, defense
counsel noted that, in regards to a section 1026 defense, appellant repeatedly
asserted in all of his many Marsden
hearings that he was “not crazy†and could move forward in the case. According to defense counsel, at no time did appellant
want to say or admit that he was psychotic at the time of the incident, and he
was not interested in an insanity plea.
Instead, he was steadfast on the issue that he was forced into his
actions during the incident.
In its May
18, 2012, ruling on the Marsden hearing,
the trial court summed up appellant’s concerns as follows:
“During the relevant Marsden
hearing, [appellant] indicated that [defense counsel] had failed to take steps
to investigate or otherwise address a potential mental health defense to the
charges against him in this case.
Specifically, [appellant] explained to the Court that at the time of the
2006 incident, he was under medication for his mental health issues and
believed that such facts should have been raised in the defense to the charges
against him.â€
The trial court noted that the documents attached to appellant’s
written motion confirmed that he was a participant in the mental health system
at Corcoran at a “CCCMS level of care.â€
The trial court stated that, according to appellant, he told defense
counsel that he needed to secure his “C-fileâ€
and his mental health file from the prison and that his mental health status at
the time of the incident needed to be explored but that defense counsel ignored
his request.
The trial
court stated that defense counsel, in response to appellant’s allegations,
stated that the issue of appellant’s mental health was considered by him; that
he understood appellant to be at the CCCMS level of care at the time of the
incident; and that, in conversations with appellant, appellant insisted that he
had no other option but to take the action he did during the incident. The court also stated that defense counsel had
said he discussed with appellant the inconsistencies between a section 1026
defense and his insistence that his actions were based on necessity and duress,
and that the evidence secured from appellant confirmed that he had planned the
actions for some time prior to the incident.
The court stated that defense counsel had also discussed with appellant the
fact that diminished capacity was not a defense, but only relevant to the issue
of his level of intent.
The trial
court then stated:
“Based upon the foregoing and the entire record before
this Court, it’s hereby ordered the motion is denied. [¶] It
appears that [defense counsel] appropriately considered and rejected as a
matter of trial tactic[s] a mental health defense in favor of an affirmative
defense, and based those theories of duress and necessity most consistent with
the facts as relat[ed] to [defense counsel] by [appellant]. [¶]
Disagreement over trial tactics does not warrant appointment of new
counsel.â€
Applicable
Law and Analysis
A Marsden
motion is addressed to the discretion of the trial court and a defendant bears
a very heavy burden to prevail on such a motion. (People
v. Bills (1995) 38 Cal.App.4th 953, 961.)
“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.†(People
v. Crandell (1988) 46 Cal.3d 833, 854, abrogated on another ground as
stated in People v. Crayton (2002) 28
Cal.4th 346, 364-365.) “The defendant …
cannot rest upon mere failure to get along with or have confidence in counsel.†(People
v. Bills, supra, at p. 961.)
A
disagreement as to tactics and strategy is not sufficient to require a
substitution of counsel. (
457, 464-465.) There is “no
constitutional right to an attorney who will conduct the defense of the case in
accordance with an indigent defendant’s whims.â€
(People v. Nailor (1966) 240
Cal.App.2d 489, 494.) Neither can a
defendant compel substitution of counsel through his own intransigence and
failure to cooperate. (
754, 761.) “[A] defendant may not force
the substitution of counsel by his own conduct that manufactures a conflict.†(People
v. Smith (1993) 6 Cal.4th 684, 696.)
Appellant contends
that the trial court erred in denying his most recent Marsden motion because he demonstrated “colorable claims demanding
appointment of counsel to investigate a new trial motion based on failure to
investigate and present apparently significant medication/mental health issues
going to diminished actuality.†(Full
capitalization omitted.) Based on his
allegations of error, appellant requests that this Court remand this matter
again with instructions to appoint new counsel to investigate his medication
and mental health issues. In the
alternative, appellant seeks to have this court remand the case again for
further inquiry in another Marsden
hearing. We find no error on the part of
the trial court in denying appellant’s Marsden
motion.
On remand,
this Court ordered the trial court to hold a Marsden hearing “focused only on appellant’s complaints that he had
mental health issues at the time of the incident.†Despite appellant’s claims to the contrary, we
find that the trial court properly investigated his complaints about defense counsel’s
investigation of his mental health status at the time of the incident.
At the Marsden hearing, the trial court gave appellant ample and repeated
opportunity to explain his mental health history and treatment and his concerns
involving defense counsel. During the
hearing, appellant stated that he had raised his concern regarding his mental
health status at the time of the incident to defense counsel. As such, appellant acknowledges that defense
counsel was aware of appellant’s mental health status and appellant’s belief
that it should be used defensively.
Defense counsel, in response to appellant’s
statements and the trial court’s questioning, demonstrated that he had
considered an insanity defense for appellant, but that appellant had refused to
consider such an option. Defense counsel
explained that, after the trial court denied the defense request to present a
defense of necessity or duress, he considered the defenses of competency
(§ 1368) and insanity (§ 1026).
Defense counsel then explained to the trial court why he did not present
either of those defenses at trial.
Specifically, defense counsel stated that, while he did consider and
discussed with appellant the possibility of an insanity defense, appellant was
adamant about not pursuing such a defense.
Thus, contrary to appellant’s claim,
this was not a case where defense counsel failed to consider appellant’s mental
status at the time of the crime.
Instead, because appellant insisted on it, defense counsel instead
prepared a duress or necessity defense, which was subsequently not allowed by
the trial court.
In addition, contrary to appellant’s
assertions on appeal, the record demonstrates that defense counsel knew of appellant’s
mental health history but determined that appellant was not mentally impaired
at the time of the crimes. Defense
counsel explained that he had a great deal of experience with medicated and
mental health clients and assured the trial court that he knew how to ask the
court for help if he needed additional professional assistance in assessing a
client. In appellant’s case, defense
counsel discerned no indication that appellant did not understand the
consequences of his actions at the time of the incidents. Defense counsel noted that appellant’s
judgment never appeared clouded by medication, as evidenced by the fact that appellant
took the time to construct a weapon to attack the officers. Defense counsel, in fact, believed that appellant’s
actions in the attack were “deliberate.â€
The record supports, as the trial
court found, that defense counsel made a reasonable tactical decision not to
present an insanity defense. The lengthy
discussion during the Marsden hearing
demonstrates that both the trial court and defense counsel adequately considered
appellant’s mental health argument. Defense
counsel repeatedly affirmed that appellant could communicate with him, and that
defense counsel believed appellant understood the nature of his actions at the
time he committed the crimes, as evidenced by the fact that appellant took the
time to fashion a weapon and believed he was justified in attacking the
officers in response to continued harassment.
Based on defense counsel’s repeated
affirmations that he presented appellant with an option to enter an insanity
plea, we find, as did the trial court, that defense counsel sufficiently
investigated appellant’s mental health issues at the time of the offense and
properly denied appellant’s Marsden
motion. The fact that appellant did not
agree with defense counsel’s trial tactics is of no concern. (People
v. Stewart, supra, 6 Cal.App.3d at pp. 464-465; People v. Nailor, supra, 240 Cal.App.2d at p. 494.) Furthermore, although appellant disagreed with
defense counsel’s assertions that the two had discussed an insanity plea, defense
counsel repeatedly affirmed that he had.
“To the extent there was a credibility question between defendant and
counsel at the hearing, the court was ‘entitled to accept counsel’s
explanation.’“ (People v. Smith, supra, 6 Cal.4th at p. 696.) Given the fact that defense counsel demonstrated
an in-depth understanding of appellant’s mental health status and its
consequences, the trial court likely concluded defense counsel’s explanation
was more persuasive.
We find that, on the record before
us, and contrary to appellant’s assertions, the trial court adequately
considered defense counsel’s investigation into appellant’s mental health
status at the time appellant committed the offenses. The trial court therefore properly denied appellant’s
Marsden motion.
DISCUSSION
The judgment is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Gomes, J. and Franson, J.
name="_ftn2" title="">[1] The
facts are taken from the record and file and our nonpublished opinion in
F057373), of which we take judicial notice.
