Opinion
A149360
03-15-2018
THE PEOPLE, Plaintiff and Respondent, v. DARVELLE B. LITTLE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C171014A)
A jury convicted appellant Darvelle B. Little of assault with a semiautomatic firearm and second degree robbery (Pen. Code, §§ 245, subd. (b), 211) and found true various sentencing enhancement allegations. The trial court sentenced Little to state prison and he appealed. As relevant here, Little claimed the court erred by declining to hold a hearing on his second People v. Marsden (1970) 2 Cal.3d 118 (Marsden) motion. We agreed the court erred by failing to allow Little to state reasons for his dissatisfaction with trial counsel and remanded the matter to the trial court to conduct a Marsden hearing. (People v. Little (Jan. 12, 2016, A140502) [nonpub. opn.].)
On remand, the court held a Marsden hearing and denied the motion. Little appeals. He contends the court abused its discretion by denying the Marsden motion because: (1) the court failed to conduct a "meaningful" hearing; (2) trial counsel failed to provide adequate representation; and (3) he and trial counsel were embroiled in an irreconcilable conflict.
We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We grant Little's request for judicial notice of our opinion in his prior appeal. (Evid. Code, § 452, subd. (d).) The facts regarding Little's conviction and the prior proceedings are taken from our prior opinion.
"Prosecution Evidence
"In September 2012, Jonathan Chee attended a concert in Oakland with a group of friends, including Brahm Patterson. Chee and his friends drank beer, and smoked cigarettes and marijuana. Little—whom Chee did not know—approached Chee's group. Little shared a joint with Chee, and asked him about obtaining marijuana. Chee told Little he could ' "get some" ' marijuana for him. The two men exchanged telephone numbers. Throughout September 2012, Chee and Little exchanged calls and text messages 'to deal with [the] marijuana.'
"On September 30, 2012—and at Little's request—Chee and Patterson drove to Oakland to sell Little half a pound of marijuana. When Chee and Patterson arrived at the appointed location, Little was not there. Little directed them to a second location, and then a third. When Chee and Patterson arrived at the third location, Chee saw Little. Little got into the backseat of Chee's car and directed Chee to an alleyway. Chee drove to the alley, parked, and opened the trunk of the car. In the trunk was a black messenger bag containing a Ziploc bag full of marijuana and Chee's personal items.
"When Chee opened the messenger bag to show Little the marijuana, Little drew a small, silver gun and pressed it into Chee's right thigh. Little whispered ' "Either give me the weed, or I am going to shoot you" ' and grabbed the strap of the messenger bag. Chee said, ' "Don't take my black bag," 'and held onto it. The two men struggled over the messenger bag. Little shot Chee in the left leg and ran away with the Ziploc bag of marijuana. An ambulance took Chee to a hospital where he had surgery to repair damage to his femoral artery and a branch of his femoral vein. Without medical attention, Chee would have bled to death.
"Little made numerous phone calls in jail. During one call, Little asked his friend to '[g]et rid' of his phone. In other calls, Little expressed anger upon learning the mother of his child had spoken to the prosecutor.
"Defense Evidence
"Little admitted he was a drug dealer. He described meeting Chee, and their communication in the days preceding the incident. Chee agreed to sell Little a pound of marijuana. Little sold some of the marijuana, but owed Chee money. Little and Chee arranged to meet on September 30, 2012; Little would repay Chee, and Chee would provide Little with additional marijuana to sell. Chee parked his car in the alley and asked Little 'for the money[.]' Little had the money but did not show it to Chee because he 'wanted to make sure [Chee] still had the weed.' At that point, Chee began cursing at Little and demanding the money. Chee eventually showed Little the marijuana, which was in a Ziploc bag, wrapped in a t-shirt. As Little smelled the marijuana, he felt the bag jerk. Chee snatched the bag away from Little, pulled a 'little silver gun' from his waist, and pointed it at Little. Chee said, ' "Fool. I am not playing with you. Give me my fucking money." '
"Little thought Chee was going to shoot him, so he lunged for the gun. As the men struggled, the gun went off and Chee's grip on the gun loosened. Little pushed Chee off of him and ran away; as he ran, he looked over his shoulder and saw Chee on the ground, pointing the gun at him. Little admitted disposing of his phone before he was arrested; he also explained the phone calls he made in jail. On cross-examination, Little admitted lying in a police interview."
August and September 2013 Marsden Motions
"On August 29, 2013, Little moved to substitute counsel pursuant to Marsden. At the Marsden hearing, Little complained his attorney had 'waive[d] time[,]' had not filed various motions, and had told Little he would 'lose [his] case.' Defense counsel explained that he had waived time to conduct discovery, including subpoenaing Little's cell phone records. Counsel noted he had filed a bail motion at Little's request, and explained why he had not filed a motion to set aside the information, a motion to suppress, or a motion challenging the photographic lineup. Counsel also described the discovery he had given Little, who wanted '[w]hatever the DA has.' Finally, counsel noted he had discussed trial defenses with Little and advised him to consider a plea bargain because of the strength of the prosecution's case and Little's potential prison sentence.
"The court denied the Marsden motion. It concluded defense counsel had 'been doing everything that a competent attorney could,' and had given Little a 'candid assessment of the case.' The court explained defense counsel's assessment of the case did not 'mean that the attorney is not going to be competent in representing you. . . . [I]f you do decide to go to trial, I feel confident that [defense counsel] is going to competently represent you.' The court scheduled a pretrial hearing for September 17, 2013. Trial was scheduled to begin on September 23, 2013.
"At the outset of the pretrial hearing on September 17, 2013, the judge said, 'Mr. Little, I talk with lawyers. I don't talk to folks that are represented by counsel.' Little said, 'I'm not being represented' and defense counsel explained, 'Your Honor, I think Mr. Little wants a Marsden motion.' The judge responded, '[h]e just had one. He's not getting another one. He just had one.' When Little asked to address the court, the judge said, 'No. You had one . . . not even three weeks ago[.]' Then Little asked, 'Can I represent myself? I would rather represent myself.' The judge responded, 'Do you want to do that? You can represent yourself. So before you do that, there is a form you have to fill out and I can give you that form but let me make a couple of comments about this.
" 'You have a right under the constitution to represent yourself. My job is to make sure if you exercise that right you understand what you're doing; that you're doing it freely, voluntarily, and knowingly; that . . . you understand what you're getting into; that you're not doing it just because you're annoyed with me, because you're annoyed with the lawyer that you have that the Court feels is doing a good job for you because you've already had a hearing on this point. [¶] And it's not back and forth. . . . If you're going to represent yourself, that's it. You're representing yourself all the way through to the end. There's no take-backs. You are a grown man. I advise you of what the consequences are. If you make that decision, you rise or fall on it. There is no take-backs because we do not have time for that around here, you changing your mind, I want a lawyer back, now I don't want a lawyer, depending upon how you feel at any given moment.
" 'If you make the decision to represent yourself, then that's going to be it. You're going to be at trial, picking a jury, the D.A.'s making all sorts of motions and citing code sections, you won't know what she's talking about, and when you say to me or to my colleague who is dressed like me, I want my lawyer back, they're going to say no. So I just want to make sure you understand that. [¶] If you have all that in mind and want to do that, that's fine, but I don't want you to say, No one told me that I couldn't get my lawyer back when I wanted my lawyer back. So it is a very, very long ugly road to hoe by yourself, sitting there in a felony jury trial, picking a jury and fighting off these motions the D.A. is making about stuff you don't even understand. People do it. They're usually sorry. They do it in my court, they come over and they're sorry—in my trial court and say, Judge, I decided I want a lawyer and I say, No, remember we had that discussion with the judge, . . . If you make the decision, that's it.
" 'So if you want to explore that further, representing yourself, I'm happy to give you the form and have you go over that so I can be assured you're making the decision knowingly, intelligently, and voluntarily. Short of that, this is your lawyer. We already had a . . . hearing with you less than three weeks ago as to why [defense counsel] should be discharged. That judge denied it so those are your options. [Defense counsel] or yourself.' Little then requested a continuance to get 'a real lawyer. I'm not being represented right.' The court responded, 'You have a real lawyer . . . . an excellent lawyer who knows what he's doing, who defends people in these courts every day and has done so for years.' The judge told Little he could hire another attorney, but that attorney would need to be ready for trial on Monday, September 23, 2013. Little said he would 'have somebody . . . by Monday' but did not hire a new attorney."
August 2016 Marsden Hearing
On remand, the court scheduled the Marsden hearing for May 2016. At Little's request, however, the court continued the hearing to August 2016, to give Little additional time to prepare. At the August 2016 Marsden hearing, the court asked Little to explain his position, and urged him: "[D]on't hold back, make sure that you take this opportunity to explain completely and in as much detail as available to you what it is that bothers you."
Little argued he and trial counsel had a "breakdown of communications" because counsel declined to file a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), and had failed to file motions to suppress and to set aside the information. According to Little, he and counsel argued frequently—about everything—and could "not communicate effectively." Little also complained counsel disregarded his input regarding defense strategy and "said he would lose [the] trial" and that a "jury would never believe" Little's version of the events. Little claimed trial counsel was ineffective because he failed to: (1) call or interview beneficial witnesses; (2) obtain phone records and surveillance camera footage, which would have supported a self-defense theory; (3) obtain the testimony of a ballistics expert; (4) "investigate insanity," i.e., Little's claim that he suffered from a mental illness; and (5) object to certain evidence at trial. According to Little, trial counsel was overworked and failed to prioritize the case.
Trial counsel responded to Little's complaints. Counsel—who had worked in the public defender's office since 2001—had tried 19 cases and represented over 100 defendants in felony cases through preliminary hearings and negotiated dispositions. Counsel addressed Little's claim that he failed to investigate and call certain witnesses. Counsel explained that Little wanted to subpoena witnesses to support a defense that he was "not present" at the crime scene. The prosecutor, however, had already "linked Mr. Little to the scene of this incident with cell phone records." Counsel subpoenaed phone records to "chase down [Little's] theory" and had his investigator speak to people who called Little's phone, but these callers provided "information . . . that was detrimental to the case." Additionally, the prosecutor had obtained recordings of Little's jailhouse telephone calls, where "he made admissions that tied him to the phone number that would put him at the scene of the crime."
Counsel explained why he declined to call a ballistics expert, and why he did not file the motions Little suggested. Counsel found no basis to file a Pitchess motion because Little had not made any accusations of police misconduct. As counsel explained, "[t]his was a case where it was based mostly, if not all, on civilian eyewitness testimony and there was nothing about the investigation that I thought warranted a Pitchess motion." Counsel also "did not see a colorable ground" for a motion to set aside the information because the victim identified Little at the preliminary hearing and there were no "procedural irregularities" or a deprivation "of a substantial right at the preliminary hearing."
When Little suggested a self-defense theory, counsel spent "many hours" helping Little prepare his trial testimony. Upon agreeing to a self-defense theory, counsel interviewed witnesses Little claimed would support a self-defense claim. Unfortunately, the witnesses were either "not helpful" or "detrimental" to Little's case. Counsel also responded to Little's claim that he failed to investigate Little's mental illness. Little did not give counsel "specifics" about his mental illness, and nothing suggested the availability of a "mental health defense. . . . Throughout the proceedings, Mr. Little understood the nature of [the] allegations and . . . was able to assist . . . in his defense."
Next, counsel addressed Little's allegation that he failed to make certain objections at trial. Counsel moved to exclude a prosecution witness's identification, and to exclude information regarding a jailhouse incident between Little and a sheriff's deputy. When the court allowed the prosecutor to confront Little about the incident, counsel made a "strategic decision" to have Little admit the incident rather than calling the deputy to testify because counsel felt the deputy's testimony "would have only highlighted that incident" to the jury.
Counsel acknowledged several heated exchanges with Little, but did not characterize them as a "breakdown in communication" but rather frank communication between two people who "were very serious" about Little's case. Counsel never threatened that he "would not work for" Little. Instead, counsel explained the strength of the evidence against Little and urged him to accept a plea offer. Counsel was in trial on another case when Little's trial was scheduled to begin, and he urged Little to waive time to "get a little more time to be ready for his trial. Mr. Little refused to waive time" and counsel accepted the decision. Counsel told Little he "would do everything" he could to prepare for trial, and "direct[ed] [his] full attention to Mr. Little's case" upon resolving the other case. Counsel missed one day of Little's jury selection, but another public defender represented Little, and that attorney had counsel's "notes and directions . . . as to what to do."
Little gave a lengthy response to counsel's comments. At the conclusion of the Marsden hearing, the court noted it "carefully considered" all of "Mr. Little's concerns, which . . . he has fully expressed here." The court then denied the Marsden motion. First, it noted many of Little's complaints mirrored the concerns Little raised at the August 2013 Marsden hearing. For example, in August 2013, Little complained about discovery issues, counsel's advisement that he consider a plea bargain, the time waiver, the motion to set aside, and a prosecution witness's identification. In August 2013, the trial court held a Marsden hearing and determined these concerns were not a sufficient basis for granting the motion. Next, the court determined trial counsel had "told the truth" and was a "credible witness." It commended trial counsel for communicating the weaknesses in Little's case and the potential prison sentence, concluding trial counsel's actions were "an exercise in responsible lawyering." The court concluded counsel adequately investigated the case, and properly declined to make motions that "simply had no merit." After describing counsel's conduct at trial, the court concluded counsel provided a "vigorous, engaged, fully dedicated representation [to] his client." The court determined counsel's representation during opening and closing arguments, Little's testimony, and the cross-examination of prosecution witnesses demonstrated counsel's competency. Despite the fact that counsel presented Little's defense theories "in the best light" possible, the jury disbelieved Little's testimony and returned a guilty verdict.
The court reinstated the judgment and ordered Little returned to state prison to serve the remainder of his sentence.
DISCUSSION
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion [citation]—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion 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. Streeter (2012) 54 Cal.4th 205, 230 (Streeter).)
Little contends the court did not conduct a "meaningful" Marsden hearing. We disagree. " ' "[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement." ' " (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) Marsden requires a trial court to listen to a defendant's " 'reasons for requesting a change of attorneys.' " (Id. at p. 804.) Here, the trial court did just that—it asked Little to list the grounds upon which he believed trial counsel had provided inadequate representation and the grounds upon which he believed there was an irreconcilable conflict with counsel. After allowing Little to discuss his concerns in great detail, the court elicited a response from counsel, and then provided Little with an opportunity to respond. The court went to great lengths to ensure Little had ample time to convey his concerns, repeatedly encouraging him "to elaborate," and reminding Little he had "the time" to convey all of his complaints. We conclude the "court made a proper inquiry" at the Marsden hearing. (Id. at pp. 803-804.)
This is not a situation like People v. Groce (1971) 18 Cal.App.3d 292, where the trial court made no effort to inquire into defense counsel's alleged inadequacy. (Id. at p. 296.) As discussed above—and as Little acknowledges—the court inquired into Little's complaints, and obtained a response from trial counsel. That the court declined to ask counsel to respond to Little's complaint regarding surveillance footage does not demonstrate the Marsden hearing was inadequate. (People v. Maciel (2013) 57 Cal.4th 482, 514 [transcript demonstrated the defendant was given "considerable leeway to identify and discuss with the court each of his concerns about counsel's representation" and that "counsel was given an opportunity to respond to these concerns"].)
Nor are we persuaded by Little's claim that trial counsel failed to provide adequate representation. The court concluded counsel had "told the truth" and was a "credible witness" at the Marsden hearing, and described counsel's conduct before and during trial as "an exercise in responsible lawyering" and determined counsel provided a "vigorous, engaged, fully dedicated representation [to] his client." Little's disagreement with that conclusion does not demonstrate counsel's representation was inadequate. Little complains trial counsel failed to "gather surveillance camera evidence" and failed to call "potential witnesses . . . he wanted to testify," but Little has not demonstrated trial counsel's performance was objectively unreasonable.
Finally, we reject Little's assertion that he and trial counsel were "embroiled in irreconcilable conflict." The record establishes Little wanted counsel to file unmeritorious motions and pursue a defense unsupported by the evidence. "[T]tactical disagreements between a defendant and his attorney or a defendant's frustration with counsel are not sufficient cause for substitution of counsel." (Streeter, supra, 52 Cal.4th at p. 231; People v. Earp (1999) 20 Cal.4th 826, 876 [record did not demonstrate defendant's disagreement with counsel was "irreconcilable or likely to result in ineffective representation"].) Nor does Little's purported distrust of trial counsel establish an irreconcilable conflict. " '[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.' " (People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on another ground as stated in People v. Ochoa (1998) 19 Cal.4th 353, 458, fn. 10.)
We conclude the court did not abuse its discretion in denying the Marsden motion. (Streeter, supra, 54 Cal.4th at p. 230.) It conducted an adequate inquiry into Little's concerns, and its "findings that counsel was not incompetent and that no irreconcilable breakdown had occurred are supported by the record." (People v. Maciel, supra, 57 Cal.4th at p. 514.) Having reached this result, we need not consider the parties' arguments regarding prejudice.
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.