Filed 4/30/09 P. v. Murphy CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. DAVID MURPHY, Defendant and Appellant. A119999 (Alameda County Super. Ct. No. C154341) A jury convicted defendant of attempted premeditated murder (Pen. Code, 187, subd. (a), 664, subd. (a)), 1 mayhem ( 203), and possession of a firearm by a felon ( 12021, subd. (a)(1)). The jury also found true the enhancement allegations of personal discharge of a firearm and infliction of great bodily injury ( 12022.7, subds. (a) & (b); 12022.53, subds. (b)-(d); 12022.5, subd. (a)(1)) for the attempted premeditated murder and mayhem convictions. The trial court found both of defendant s prior prison term enhancement allegations true. Defendant appeals from the judgment and argues that the lower court abused its discretion when it denied his motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Additionally, he contends, and the People agree, that the sentences imposed for the mayhem and felon in possession of a firearm convictions should have been stayed 1 All further unspecified code sections refer to the Penal Code. 1
pursuant to section 654 and that the enhancements under section 667.5, subdivision (b) were improperly added to both the determinate and the indeterminate sentences. We order the trial court clerk to amend the abstract of judgment to correct the sentences, but otherwise affirm the judgment. BACKGROUND Defendant was arrested on August 29, 2006. An information filed on January 1, 2007, charged defendant in count one with attempted premeditated murder ( 187, subd. (a), 664, subd. (a)), in count two with aggravated mayhem ( 205), and in count three with possession of a firearm by a felon ( 12021, subd. (a)(1)). The first two counts alleged the personal discharge of a firearm and the infliction of great bodily injury ( 12022.7, subds. (a) & (b); 12022.53, subds. (b)-(d); 12022.5, subd. (a)(1)). The information also alleged two prior convictions and two prior prison term commitments ( 667.5, subd. (b)). A jury trial on the abovementioned charges began on September 17, 2007. Prior to jury selection, defendant requested a new attorney pursuant to Marsden, supra, 2 Cal.3d 118. The court denied this motion. At trial, witnesses testified that Quincey Carr, accompanied by his girlfriend Jaime Tobin, went to have his hair cut at a barbershop in Oakland. Carr sat in the barber chair and Tobin waited on a nearby bench. Defendant entered the shop, approached a barber, pulled out a bottle of tequila, and shared a drink of tequila with the barber. Defendant sat down next to Tobin, put his arm around her, and asked her for her phone number. She responded, No[.] She informed him that she was there with her boyfriend. Defendant asked Carr for Tobin s phone number and he said, No, she was his girlfriend. The people in the shop laughed. Defendant left the shop. Defendant returned about 10 or 15 minutes later; he walked up to Carr and pointed a gun at his head. Carr moved to the left out of the chair and asked defendant not to shoot him. The barbers and all of the other patrons ran out of the barbershop. Defendant 2
told Carr, [B]reak yourself. Carr reached into his pockets and told defendant that he did not have any money. Carr ran out of the barbershop. Defendant ran after Carr and shot him twice. Carr was able to keep running, but a third shot hit his lower back and knocked him to the sidewalk. Carr tried to crawl away, but defendant stood over him and shot him twice more before defendant ran off. After six surgeries, Carr remained paralyzed. A passing motorist saw the incident and watched defendant get into the passenger side of a car with at least four other people. She followed as the car drove away and managed to get the license number of the fleeing car. Tobin identified defendant from a photograph lineup showed to her by a police officer. Another barber at the shop initially denied seeing the shooting. Subsequently, he admitted to being present and identified defendant s photograph. By stipulation, the jury was informed that defendant had previously been convicted of a felony. On October 11, 2007, the jury found defendant guilty of attempted premeditated murder. It acquitted him of aggravated mayhem, but found him guilty of mayhem ( 203). The jury also found him guilty of being a felon in possession of a firearm. It found all of the enhancement allegations submitted to it to be true. Defendant waived a jury trial on the prior prison term enhancement allegations and, on November 30, 2007, the trial court found both of them to be true. The court imposed state prison for life with the possibility of parole for premeditated murder, a consecutive indeterminate term of 25 years to life for the intentional discharge of a firearm causing great bodily injury enhancement, and two consecutive one-year sentences for the two prior prison term enhancements. It also sentenced defendant to the upper term of eight years in prison for mayhem, the upper term of three years in prison for being a felon in possession of a firearm, and two consecutive one-year sentences for prior prison term enhancements, to be served concurrently with the indeterminate terms. Defendant filed a timely notice of appeal. 3
DISCUSSION I. Defendant s Marsden Motion A. Background The trial court held an in camera hearing on September 17, 2007, on defendant s Marsden motion. Deputy Public Defender Barbara Thomas was representing defendant. At the hearing, the court asked defendant why it should discharge Thomas as his attorney, and defendant responded: Well, since the beginning of this case, I feel like I ain t never I don t have no faith for Ms. Thomas. You know, she wrote me and told me that it s nothing really that she could do about my case, you know what I mean? I sit up here since I got arrested August 28th. I suppose to had an investigator.... I finally get an investigator after I get moved to superior court.... Her tactics, I don t understand it. I don t know what s going on. My witnesses that I have for my case, I talked to them, asked them have they talked to my attorney, they say no; or one time they talked to her, she tried to, you know, discourage them to come testify for me saying that where the location that it happened at wasn t no hangout spot or whatever.... The court asked Thomas to respond and she told the court, [T]he case essentially involves a shooting to which my client subsequently confessed.... She stated that she retained Dr. Steven Patel, an expert forensic toxicologist, who visited with defendant several times about the case. Patel contacted a number of witnesses who were with defendant that day. Patel was to assess the amount of drugs consumed by defendant just prior to the shooting and their effect on him. Additionally, Thomas said she spoke several times to a person named Joseph and asked him for very specific information which includes his name, his full name and address. She also told him that she would have to disclose to the district attorney that he was going to be a witness and that her understanding was that the district attorney would 4
do a criminal history check on him. Joseph, according to Thomas, responded that he wasn t ready for counsel to do that. Thomas stated that she spoke to another witness, Steven, and provided him with the same information she had given Joseph. Thomas told the court: He would not give me his full name[;] he would not give me his address[;] and he would not I told him, again, that I would have to disclose that he was a potential witness to the district attorney. And he indicated also that he was not willing to do that. Thomas explained that she also hired investigator Michelle Gandy. Gandy spoke to defendant, Steven, and Joseph. Thomas clarified: [A]s recently as this lunch hour, [she] called me and asked me one more time if [defendant] could give her the name and the street address of either Steven or Joseph, both preferably, so that we can subpoena them. Because they ve been very reluctant to come forward. Gandy s impression, according to Thomas, was that Steven and Joseph did not want to testify. Thomas stated that she, again, asked defendant for the last names of Joseph and Steven or for their street addresses so that she could have Gandy subpoena them to be there. Thomas reported that defendant s response was that he wanted a new lawyer. Defendant told the court that Steven s last name is Vincent and that he had given Steven s last name, phone number, and address in Pittsburg to the investigator. Defendant claimed that he also gave Joseph s last name of Allen and cell phone number to the investigator. Defendant stated that the investigator only came to see him twice. The court asked Thomas whether this was the first time she heard that defendant was claiming that he gave the full names of Steven and Joseph to the investigator as well as their phone numbers and addresses. Thomas replied: Yes. As I said, my investigator called me at the lunch hour, this lunch hour today, and said she doesn t have that information. [ ] She said that she has been calling this cell phone and it plays it doesn t answer, the person doesn t call back, and it plays classical music. So she doesn t think it s the correct person. 5
Defendant responded that he believed that his attorney was not putting her best effort into the case.... The court followed up and asked what she had not been doing, and defendant said: She haven t been coming to see me. The court asked defendant what more would have been accomplished if counsel had made additional visits. The court told defendant that counsel had reported that she wanted to get witnesses to corroborate the fact that he had taken a certain amount of drugs and alcohol before this incident, but she could not get the witnesses full names. Defendant said that he wanted to discuss the following with his attorney: That somebody came out there, came out to where I was standing at, that I didn t leave the area, that was the hangout spot where we be at, that somebody came outside from the barbershop and told me that dude was about to shoot me. When the court asked defendant who this witness was, defendant answered: It was L-i but I don t know his full name. When asked whether he had told his attorney that, defendant said he had. Defense counsel responded that the barbershop had closed and it was therefore hard to locate a person. The location was no longer a hangout spot. Defendant provided the court with an address where the barbers had moved and defense counsel said that she was not aware of the new address. Defendant said that he learned the new address about two months ago and that he did not tell his attorney because she did not communicate with him. Counsel said that she had three visits with defendant, and had accepted about six collect phone calls from him. Thomas explained that she could look for these witnesses but she did not see how they would be helpful because defendant left the barbershop and then returned. Counsel stated that the defense involved evidence that defendant had consumed some Ecstasy, some heroin, and some cocaine. She elaborated: But the amount of time that lapsed between my client leaving the barbershop the first time and coming back, the victim is remaining in the chair. So I don t think it would present a legal defense for someone to have come out of this the barbershop and say this guy in the barbershop was sitting in the chair is fixing to kill you. I don t see my client acted in self-defense by going into the 6
barbershop. [ ] I mean, I m glad to try and find out what additional information that person could tell me that could possibly help my client, but I don t think that s a defense. Defendant stated: I m thinking to myself that [Thomas] and the, um, [district attorney], they in cahoots. He explained: That s how I feel. Because every time I go to court, she telling me the [district attorney] is not going to allow her to do this. The judge don t want to talk to you. The judge don t even want to speak to you. Defendant then asked for the victim s medical reports and asserted that he never received them. He indicated that he believed that it would help his defense if he could show the victim was able to walk and was not paralyzed. Defendant said that he never received a copy of the preliminary hearing transcript from his attorney. Thomas responded that it was her practice to give the preliminary hearing transcript to her clients and that she had sent him the transcript. She said that she could not be certain that the jail authorities gave defendant the transcript and she would make another copy and give it to him. At the end of the hearing, the court denied defendant s Marsden motion. B. The Law Criminal defendants are entitled under the Constitution to the assistance of courtappointed counsel if they are unable to employ private counsel. However, the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney. (Marsden, supra, 2 Cal.3d at p. 123.) A defendant is entitled to... [substitute appointed counsel] if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) 7
If a defendant requests a new attorney, the trial court must give the defendant an opportunity to explain the reasons for the request and to provide example of the counsel s inadequate performance on the record. (People v. Barnett, supra, 17 Cal.4th at p. 1085.) If the defendant articulates facts that suggest the attorney is rendering constitutionally ineffective assistance, the trial court is obligated to make whatever inquiry is necessary to develop a sufficient record so that it may assess the defendant s claim. (People v. Munoz (1974) 41 Cal.App.3d 62, 66.) The purpose of a Marsden hearing is for the trial court to determine whether appointed counsel should be replaced: A trial judge is unable to intelligently deal with a defendant s request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, [w]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy. [Citation.] (Marsden, supra, 2 Cal.3d at pp. 123-124.) In determining whether a trial court properly exercised its discretion in denying a Marsden motion, the reviewing court should consider all of the circumstances of the particular case (People v. Panah (2005) 35 Cal.4th 395, 426), including (1) the timeliness of the motion, (2) the adequacy of the court s inquiry into the defendant s complaint, and (3) whether the conflict between the defendant and counsel was so great that it resulted in a total lack of communication preventing an adequate defense (People v. Smith (2003) 30 Cal.4th 581, 606-607). There is no constitutional right to an attorney who would conduct the defense of the case in accord with the whims of an indigent defendant. [Citations.] Nor does a 8
disagreement between defendant and appointed counsel concerning trial tactics necessarily compel the appointment of another attorney. (People v. Lucky (1988) 45 Cal.3d 259, 281-282.) C. Applying the Law to the Facts of this Case Here, the trial court conducted a Marsden hearing and made a record that it adequately aired and considered defendant s complaint. (People v. Eastman (2007) 146 Cal.App.4th 688, 696.) The court allowed defendant to express his complaints about his attorney and then permitted his attorney to respond. (See People v. Smith (1993) 6 Cal.4th 684, 694.) Defendant does not complain that the trial court did not make the proper inquiry, but contends that the lower court abused its discretion in denying his Marsden motion based on his assertion that his trial counsel discouraged his witnesses from testifying. The record, however, does not support his contention that Thomas was not loyal to defendant or that she had such a great conflict with defendant that she could not provide adequate representation. The record showed that Thomas had worked diligently to represent defendant. She had retained Dr. Steven Patel, an expert forensic toxicologist, to explore the possibility that defendant had consumed so much drugs prior to the incident that he could not form the requisite intent. Defendant became upset with Thomas for failing to have witnesses Joseph and Steven testify at trial, but this was not a situation where counsel did not attempt to contact the potential witnesses. Both Thomas and her investigator spoke with these two potential witnesses and attempted to gain more information about them. Defendant argues that Thomas was disloyal by telling the potential witnesses that she would have to give their name and a phone number or address to the district attorney. She also told them that the district attorney would contact them and run a criminal history. He complains that it was not surprising that the witnesses became reluctant to testify and bolted. Defendant complains that Thomas arguably interfered with his right to present witnesses regarding his mental state just prior to committing the crime and that 9
Thomas s words were tantamount to telling the witnesses not to testify. (See People v. Thomas (1978) 83 Cal.App.3d 511, 514 [ There is, of course, no talismanic requirement that a defendant must say Don t testify or words tantamount thereto, in order to commit the charged offenses. As long as his words or actions support the inference that he (1) sought to prevent or dissuade a potential witness from attending upon a trial [citation] or (2) attempted by threat of force to induce a person to withhold testimony [citation], a defendant is properly held to answer ].) Defendant claims that Thomas s statements to the potential witnesses essentially represented her abandonment of his sole potentially meritorious defense. (See People v. Frierson (1979) 25 Cal.3d 142, 164 [defendant consulted no experts regarding diminished capacity defense and offered no experts to assist jury in understanding potential impact of drugs on defendant s mental capacity and court concluded that counsel essentially abandoned the interests of the defendant].) She therefore, according to defendant, violated his right to the undivided loyalty and effort of his attorney. (See People v. Singer (1990) 226 Cal.App.3d 23, 40 [counsel s affair with client s wife when wife was also a suspect supported court s granting of a new trial based on conflict between defendant and his attorney].) The record does not support defendant s argument that Thomas provided inadequate representation. Defendant claims that Thomas discouraged Joseph and Steven from testifying. However, Thomas never abandoned her effort to get them to testify and continued to attempt to garner the necessary information to subpoena them to testify at trial. Thomas told the court that her investigator was attempting to subpoena them to testify, but defendant refused to disclose the witnesses full names and addresses. No one answered or called back after the investigator called the cell phone number given by defendant. Further, that number appeared to be incorrect since the message played classical music. Thus, the record establishes that counsel was attempting to get the witnesses to testify at the trial despite defendant s lack of cooperation. Further, the fact that Thomas informed the witnesses that she would have to give their names and addresses to the district attorney did not establish disloyalty to defendant; 10
nor was it tantamount to discouraging a witness from testifying. She had an obligation to explain the process to the witnesses and that is simply what she did. Section 1054.3, subdivision (a) requires disclosure of the witnesses names and addresses to the prosecutor. 2 It was also proper for her to advise them that it was her understanding that the prosecutor would do a criminal check. Defendant may disagree with Thomas s tactical decision on the timing of when to provide this information, but merely telling a witness about the procedure does not support defendant s argument that his attorney was disloyal. Contrary to defendant s assertion, Thomas clearly was not attempting to dissuade the potential witnesses from testifying; nor was she abandoning defendant s defense that he was under the influence of drugs when he committed the crime. Indeed, Thomas repeatedly asked defendant for the last names of Joseph and Steven or for their street addresses so that she could subpoena them to be at trial. Defendant, according to Thomas, would not provide her with this information. Defendant disputed this, but the lower court was entitled to believe counsel s representations. Accordingly, we conclude that the lower court did not abuse its discretion in denying defendant s Marsden motion. II. The Sentence Defendant contends that the trial court erred in failing to stay, pursuant to section 654, subdivision (a), the concurrent terms imposed on count two for mayhem and on count three for being a felon in possession of a firearm. He maintains that there was a single, indivisible course of conduct within the meaning of section 654 and points out that the court found that the objectives of those offenses were essentially the same, and they were not separate acts of violence.... Additionally, defendant argues that the abstract of judgment mentions the two enhancements under section 667.7, subdivision (b) 2 Section 1054.3 provides: The defendant and his or her attorney shall disclose to the prosecuting attorney: [ ] (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons.... 11
twice, and incorrectly added them to both the determinate and to the indeterminate sentences. Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted under two statutes for one indivisible course of conduct, section 654 requires that the sentence for one conviction be imposed, and the other imposed and then stayed. (Id. at pp. 591-592.) The People agree that, given the trial court s factual findings, section 654 applies and that the abstract of judgment should be amended to stay the sentence on counts two and three. Additionally, the People agree that the abstracts of judgment should be amended to reflect the imposition of just two enhancements under section 667.5, subdivision (b). We agree that the abstract of judgment should be amended. DISPOSITION The trial clerk is ordered to amend the abstract of judgment to stay the terms on counts two and three pursuant to section 654 and to amend it to impose two enhancements under section 667.5, subdivision (b) only on the indeterminate sentences. The judgment is otherwise affirmed. Lambden, J. We concur: Kline, P.J. Richman, J. 12