P. v. Alexander

Filed 11/30/05 P. v. Alexander CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. KERRY LEWIS ALEXANDER, Defendant and Appellant.

F046185 (Super. Ct. No. 1071962) OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge.

Curt R. Zimansky, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On June 29, 2004, appellant Kerry Lewis Alexander, was found guilty after a jury trial of transportation of methamphetamine (Health & Saf. Code, § 11379, count one), possession of methamphetamine (Health & Saf. Code, § 11377, count two), driving with wanton disregard for the safety of others while fleeing from a police officer (Veh. Code, § 2800.2, count three), resisting a public officer discharging his or her duty (Pen. Code, § 148, subd. (a), count four), and possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140, count five).^[1] In a bifurcated proceeding the trial court found true a prior prison term enhancement (§ 667.5, subd. (b)).

The court sentenced Alexander to prison for the three-year midterm on count one and a consecutive one-year term for the prior prison term enhancement for a total term of four years.^[2] The court imposed a restitution fine and granted applicable custody credits. On appeal, Alexander contends the trial court improperly denied him a Marsden hearing at the conclusion of the jury trial.^[3] Alexander contends the trial court improperly allowed him to be impeached with a prior conviction that did not involve moral turpitude. The parties concur that Alexander’s 60-day sentence on count four should be stayed pursuant to section 654.

FACTS

Prosecution Case

At 11:00 p.m. on February 27, 2004, Stanislaus County Sheriff’s Deputy Jonathan Howard was on patrol in Keyes when he noticed a car traveling without taillights. Howard pulled in behind the car and activated his flashing overhead lights. The car quickly accelerated to high speed. Howard pursued the car. After traveling about four blocks, the car slid off the road and came to rest against a chain-link fence. Howard stopped and ordered the driver at gunpoint to exit the car.

Alexander crawled out of the driver’s side window and ran 15 to 100 yards. Howard chased Alexander, ordering him to stop between three and five times. Howard took Alexander into custody only after Alexander fell to the ground. Shining his flashlight to where Alexander fell, Howard found a pack of red Marlboro cigarettes and black electrical cord. Howard picked them up and led Alexander to his patrol car. During an in-custody search, Howard found an unused syringe in Alexander’s pocket. Inside the cigarette pack, Howard found an empty clear plastic bag and three plastic bags filled with white powder inside. Howard believed the three bags contained methamphetamine. A criminalist with the Department of Justice tested the three bags and determined one bag contained 2.07 grams of methamphetamine and the other two contained dimethyl sulfone. Another deputy testified that 2.07 grams of methamphetamine is a usable amount.

Alexander told Howard that he thought his brakes went out. Howard did not see any trash in the area he arrested Alexander. Howard had made previous drug arrests in the area and had seen empty cigarette packs on the ground.

Defense Case

Bradley Sather, a friend of Alexander’s, said Alexander bought the car from his wife the day before. The car, a Mazda RX7, had 175,318 miles and was over 20 years old. Sather described it as a piece of junk. Though the car ran, it had faulty wiring, the roof and windows leaked, and the battery could not hold a charge. It had no rearview mirror, only an exterior mirror. The car had faulty brakes and fuel leaks. Sather believed Alexander smoked Camel cigarettes.

Alexander’s wife, Shanlon Leque, said she was present when Alexander bought the car and that Sather was fed up with it. Leque explained that the evening of February 27, 2004, she was at a friend’s home. When she left her friend’s home, Alexander approached her and they had a little spat. She left with friends. At a stop sign, Leque saw Alexander’s Mazda pull around to the side of the street facing south. Alexander kept going but looked as if he was trying to stop.

Leque saw a police officer pass her. She saw two white lights on top of the patrol car but did not hear a siren. The patrol car was traveling about 40 miles per hour and was catching up to the Mazda. Soon she saw Alexander’s car in a fence.

Avis, a long-time acquaintance of Alexander’s, was in the car with Leque. Avis said he saw Alexander coming up behind them; they pulled over expecting Alexander to stop to talk. Alexander drove by and did not stop. Avis wondered if something was wrong because Alexander looked as if he was trying to stop the car. Alexander’s brake lights were on. When the patrol car went past, it was not flashing red lights and there was no siren.

Post Trial Hearing

After the trial proceedings had concluded, Alexander asked the court if there was “[a]ny way that I can make a statement on this saying I feel that I wasn’t represented properly?” The court replied it will be a matter for appellate counsel. The court said that after hearing the facts of the case, it was not sure what more defense counsel could have done for Alexander.

Alexander responded that every time he asked counsel questions, counsel would not tell him the truth. Alexander thought counsel was working with the prosecutor. Counsel gave evidence to the prosecutor. When the court asked Alexander if there was anything about the facts of the case that might indicate Alexander might be found not guilty, Alexander said his parole officer could testify as to his credibility.

The court asked whether Alexander happened to land on the cigarette pack just by accident. The court explained that if Alexander wanted new counsel for sentencing, he could make a Marsden motion at that time. The court explained to Alexander that the only purpose for such a motion would be to question whether defense counsel would represent Alexander for sentencing, “period.” The court further stated that whether defense counsel’s representation was adequate through trial was “a question for your appeal.”

MARSDEN HEARING

Alexander contends he was not afforded an opportunity for a Marsden hearing. Respondent replies that Alexander did not expressly ask for new counsel. After reviewing the record, we agree with Alexander that the trial court failed to make a proper inquiry consistent with established Marsden procedure.^[4]

When a defendant acts in some manner to discharge counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his or her contention and to relate specific instances of counsel’s alleged inadequate performance. A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation or if the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to occur. (People v. Fierro (1991) 1 Cal.4th 173, 204.)

A defendant can request a Marsden hearing pretrial, during trial, or postconviction. (People v. Smith (1993) 6 Cal.4th 684, 694.) Where there is a postconviction challenge to counsel’s competency, the defendant may be entitled to new counsel to pursue a motion for new trial based on the original attorney’s incompetency. There is always an inherent conflict if trial counsel is placed in the position of arguing his or her own incompetency. (Id. at pp. 693-696.)

It is routine practice for the trial court to take testimony during a Marsden hearing in camera without the presence of the prosecuting attorney. (People v. Smith, supra, 6 Cal.4th 684, 694; People v. Mandago (1990) 220 Cal.App.3d 982, 990.) At the Marsden hearing, the court must give the defendant an adequate opportunity to state all reasons for dissatisfaction with the appointed attorney. (People v. Vera (2004) 122 Cal.App.4th 970, 980.)

The trial court in the instant action actively discouraged Alexander from complaining about trial counsel’s performance. The court twice told Alexander his remedy for inadequate representation was on appeal. The court told Alexander he could only make a motion for new counsel if he wanted different counsel for sentencing. The court’s statements were legally incorrect. If there was merit to Alexander’s contention, substitute counsel could file a motion for new trial.

Respondent’s argument that Alexander did not expressly request new counsel is unpersuasive because the trial court expressly stated it would not hear a motion to substitute counsel unless Alexander limited the substitution to the sentencing hearing. Alexander cannot be seen to have abandoned his claim where the trial court effectively told him prior to conducting a Marsden hearing it would not entertain a substitution motion unless the substitution was limited to sentencing.

The trial court should have conducted an in camera hearing without the prosecutor to determine whether there were grounds to substitute counsel pursuant to Marsden and its progeny. Alexander was only able to articulate one basis for such a motion – that his trial counsel failed to call his parole officer as a character witness. Because there was not a proper hearing, we cannot ascertain whether there were other reasons counsel’s representation may have been inadequate.

One purpose for a Marsden hearing is to create a record for appellate review. Without a careful inquiry into the defendant’s claim of incompetence of counsel, the proceeding is lacking in the attributes of a judicial determination. (See People v. Ivans (1992) 2 Cal.App.4th 1654, 1666.) Without a proper hearing, there is no record for us to review.

From the brief interchange between the trial court and Alexander, it appears the court’s initial perception was that trial counsel had done a competent job. The court, however, did not afford Alexander an opportunity to set forth all potential challenges to counsel’s representation. Only after hearing these can the trial court make a final determination concerning counsel’s performance.

The appropriate procedure is to remand the case to the trial court to conduct a full inquiry into Alexander’s allegations concerning counsel’s performance. If the court determines the defendant has presented a colorable claim of ineffective assistance of trial counsel, or if there has been an irreconcilable conflict between the defendant and trial counsel, the court must appoint new counsel to fully investigate and to present a motion for new trial. If the inquiry fails to disclose a colorable claim, the motion for substitution of counsel may be denied and the judgment reinstated. (See People v. Ivans, supra, 2 Cal.App.4th 1654, 1667; People v. Winbush (1988) 205 Cal.App.3d 987, 992.)

IMPEACHMENT

Alexander argues he was improperly impeached with a prior conviction for possession of methamphetamine in jail (§ 4573.6). We need not reach the issue of whether section 4573.6 is a crime of moral turpitude to resolve this issue. Alexander was impeached with three other prior felony convictions. Two of these were for receiving stolen property (§ 496, subd. (a)), a crime which involves moral turpitude. (People v. Rodriguez (1986) 177 Cal.App.3d 174, 178-179.) Thus, two of Alexander’s prior convictions were crimes of moral turpitude.

In determining whether impeachment with such offenses is error, we follow the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836, unless a more fundamental constitutional right is involved. (People v. Collins (1986) 42 Cal.3d 378, 391, fn. 12; People v. Marquez (1986) 188 Cal.App.3d 363, 368-369.) We find that it is not more reasonably probable that the result of the trial would have been different had the prosecution not impeached Alexander with his prior conviction for section 4573.6.

MISDEMEANOR SENTENCE

Alexander contends the trial court erred when it failed to stay his 60-day misdemeanor sentence for resisting a peace officer (§ 148, subd. (a)) pursuant to section 654. Respondent concedes the error. The parties agree that Alexander’s resistance to Howard’s arrest was merely a continuation of his initial flight from Howard in violation of Vehicle Code section 2800.2. It was part of an indivisible course of conduct that constituted a single offense which can only be punished once under section 654. We agree with the parties.

DISPOSITION

The judgment is reversed and remanded for the limited purpose of holding a Marsden motion. If Alexander makes a prima facie showing of ineffective assistance of trial counsel, or of an irreconcilable conflict with counsel during the proceedings which undermined counsel’s effectiveness, the court is directed to appoint new counsel for the purpose of bringing a motion for new trial and to proceed accordingly. If Alexander fails to make a prima facie showing of ineffective assistance of trial counsel, or of an irreconcilable conflict with counsel, the court is directed to reinstate the judgment and to stay Alexander’s misdemeanor sentence on count four.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.

^[1] Unless otherwise indicated, all statutory references are to the Penal Code.

^[2] The court stayed Alexander’s sentence on count two pursuant to section 654 and imposed a concurrent two-year term on count three. On counts four and five, the court imposed concurrent 60-day terms on each count and then granted credit for time served.

^[3] People v. Marsden (1970) 2 Cal.3d 118.

^[4] Because we find there was no Marsden hearing, we do not discuss Alexander’s alternative theory that if a Marsden hearing occurred, it was inadequate.