Opinion
B189410
4-27-2007
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JERMAINE CALIMON, Defendant and Appellant.
Rodney Richard Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Defendant Michael Jermaine Calimon appeals from a judgment of conviction after a jury trial. The jury found defendant guilty of a violation of Penal Code section 12021, subdivision (a)(1), (possession of a firearm by a felon). The jury also found the allegations of four prior felony convictions to be true (§§ 667, subds. (b)-(i), 1170.12).
All further statutory references are to the Penal Code unless otherwise indicated.
Although four prior "strike" convictions were alleged, the district attorney proceeded with the case as though it were a second strike case. The trial court therefore struck three of the four prior convictions found to be true and sentenced defendant to the midterm of two years, which was doubled as a second strike. On appeal, defendant contends the trial court abused its discretion in not granting a continuance, not conducting a Marsden hearing and denying defendants request for self-representation. We disagree and affirm the conviction.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
On the evening of August 28, 2005, City of Long Beach Detective Brad Scavone was on patrol in an unmarked vehicle with two other officers, Detective Hector Cardiel and Detective Frank Romero, when he noticed some fresh graffiti. The headlights of his vehicle illuminated a parked car in an uninhabited area, a block from a residential area with a high crime rate. The car was stopped about two feet from a curb line. Defendant was in the drivers seat and two other males were inside. The front passenger was holding up a small baggie which the detectives believed contained marijuana.
The detectives approached the car. The front passenger was cited for possession of marijuana and released. A check with the computer revealed that the vehicle was unregistered or had expired registration. Additional information from the computer indicated that defendant had an expired license.
Detective Scavone observed that defendant seemed extremely nervous. For reasons of officer safety and to determine if there was more contraband, the officers decided to have defendant and the other two men get out of the car. Defendant initially refused, but when threatened with a taser he got out of the car and was handcuffed. During a patdown search, Detective Romero discovered a gun in his back pants pocket.
A certified CLETS (California Law Enforcements Telecommunications System) document with defendants name showed that he had a suspended drivers license. A fingerprint expert took defendants fingerprints and compared them with records from the Department of Corrections, concluding they were the same as those of the person convicted of four felonies alleged as strikes in the information: three counts of second degree robbery and one count of attempted second degree robbery.
DISCUSSION
On December 12, 2005, counsel for defendant sought a continuance of the jury trial, indicating that he was intending to file a section 1538.5 motion and locate witnesses. The trial court granted the motion.
After the trial court had indicated its willingness to continue the jury trial, defendant spoke up to object. The following colloquy took place:
"The Defendant: Your Honor, there is [sic] no witnesses.
"The Court: Mr. Creary has said he may need witnesses for your 1538. So ordered.
"The Defendant: I dont need them to be my witnesses. I dont want my time violated.
"The Court: Thats the order.
"The Defendant: Can I have my counselor fired? I would like to go pro per right now because I dont want to waive my time. I want to proceed with my 60 days, your Honor. I want to
"Mr. Creary: You dont even have clothes.
"The Defendant: I dont want this lawyer anymore. [¶] . . . [¶]
"The Defendant: I am ready to go. I would like my 60 days. [¶] . . . [¶]
"The Defendant: Your Honor, I dont want my time violated. I would like to have—to proceed with my speedy trial 60 days that I have a right to. Like the judge in the other courtroom, he granted me that. He said I have a right to go to trial within 60 days.
"The Court: You know, if you are that insistent, I will keep Mr. Creary on the case and we will go forward with your case, if you are that insistent.
"The Defendant: Thank you."
The jury panel was summoned and the trial proceeded. There was no further comment of dissatisfaction by defendant.
A. Continuance
Defendant contends that his right to a fair trial was compromised by the trial court not agreeing to a continuance. We disagree.
First, defendant fought the continuance requested by his counsel and demanded that he be given his right to a speedy trial. In so doing, he waived any claim of error in the trial courts refusal to continue the proceedings. (Cf. People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
In any event, the determination of whether to grant a motion for continuance rests within the sound discretion of the trial court. (People v. Sakarias (2000) 22 Cal.4th 596, 646; People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) The defendant has the burden of establishing an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
Defendant points to nothing in the record indicating that his rights were adversely affected by proceeding with the trial as he requested. The record does not disclose any evidence that defense counsel was not ready to start the trial. The issue of clothing was resolved when the trial court allowed defendant to wear his T-shirt. Defendant has failed to show any abuse of discretion in denying a continuance. (People v. Beeler, supra, 9 Cal.4th at pp. 1003-1004.)
B. Marsden Motion
Defendant contends that the trial court should have held a Marsden hearing to inquire concerning the disagreement between defendant and his attorney. We disagree.
A defendants Sixth Amendment right to the assistance of counsel entitles him 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." (People v. Welch (1999) 20 Cal.4th 701, 728, internal quotations marks omitted; People v. Memro (1995) 11 Cal.4th 786, 857.) The record is clear that defendants dissatisfaction with counsel was the "violation" of his speedy trial rights. When the trial court indicated that it would proceed to trial and not grant the continuance, defendants response was simply "Thank you."
There is nothing in the record that would warrant the trial court to conduct a Marsden hearing. People v. Lucky (1988) 45 Cal.3d 259, 281, cited by defendant, correctly sets forth the requirement that a trial court must afford the defendant an opportunity to express the specific reasons why he believes he is not being adequately represented by his current counsel. The Lucky case indicates that a difference of opinion between a defendant and his attorney over trial tactics does not impose a duty on a trial court to hold a Marsden hearing. In the instant case, there was a disagreement between defendant and trial counsel over the request for a continuance. The issue was resolved to defendants satisfaction when the jury trial was not continued. Hence, there was no need to conduct a Marsden hearing.
C. Self-Representation
Defendant contends that he was denied his right to self-representation. We disagree.
A request for self-representation must be unequivocal. (People v. Barnett (1998) 17 Cal.4th 1044, 1087; People v. Bradford (1997) 15 Cal.4th 1229, 1365.) A motion made in "passing anger" or frustration may be denied. (People v. Marshall (1997) 15 Cal.4th 1, 23.)
While the record indicates that the defendant wanted to go pro. per., it is evident from the record that the reason for the request was defense counsels request for a continuance over defendants objection. The request appears to have been made in "passing anger" or frustration. Once the trial court agreed to commence the jury trial, the defendant never again made a request to represent himself. Defendant did not request a ruling on his request to represent himself. This resulted in an abandonment of his Faretta motion. (People v. Dunkle (2005) 36 Cal.4th 861, 909; People v. Skaggs (1996) 44 Cal.App.4th 1, 4-8.)
Faretta v. California (1975) 422 U.S. 806.
DISPOSITION
The judgment is affirmed.
We concur:
MALLANO, Acting P. J.
ROTHSCHILD, J.