Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA055519, Richard H. Kirschner, Judge.
Patrick Morgan Ford, 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, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Jesus Delarosa Gomez, appeals from his convictions for cocaine base transportation (Health & Saf. Code, § 11352, subd. (a)) and possession (Health & Saf. Code, § 11350, subd, (a)) and the finding he had previously been convicted of two drug offenses. (Health & Saf. Code § 11370.2, subd. (a).) Defendant argues the trial court failed to appoint separate counsel to represent him at his substitution of counsel hearing. Defendant further argues that the court did not make an adequate inquiry at that hearing. We affirm.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) While on a routine undercover patrol on April 15, 2007, Los Angeles Police Officer Shawn Stevens saw Manuel Candeles. Officer Stevens had found a cocaine pipe on Mr. Candeles’s person approximately four months earlier. Officer Stevens was assigned to the narcotics division. In that capacity, he had extensive training and experience regarding: identification and recognition of narcotics; drug packaging; recognition of individuals under the influence of narcotics; and, the purchase and sale of drugs.
Officer Stevens watched Mr. Candeles walk to Loma Verde Street and Cohasset Street and sit on the curb. Approximately five minutes later, a tan Ford pickup truck, driven by defendant pulled along the curb. Mr. Candeles walked to the driver’s side of the truck. The driver was the only occupant of the truck. Mr. Candeles reached inside the window and received an object into his cupped hand. Mr. Candeles quickly pulled his hand away. Mr. Candeles then walked away from the truck. Mr. Candeles walked in the direction of Officer Stevens’ undercover car. Officer Stevens saw Mr. Candeles toss something. Mr. Candeles then placed a white rock resembling cocaine on his tongue. Cocaine purchasers often place it on their tongue to avoid detection.
Mr. Candeles walked towards Officer Stevens’s car. As he approached, Mr. Candeles made eye contact with him and had a startled look on his face. Officer Stevens radioed his fellow squad members that a possible narcotics transaction had taken place. Officer Stevens began to follow the truck until defendant parked on Eaton Street. Officer Stevens could see that the driver’s side window of the truck was open. Three officers joined Officer Stevens at that time. Officer Stevens approached the truck. As this was occurring, defendant was looking down and appeared to be doing something in his lap. Defendant refused to get out of the truck. Defendant reached toward the right portion of the truck cab. Defendant was then removed from the truck by Officers Jaime Mejia and another investigator. As defendant exited the truck, he threw a baggie of a white rock substance which was later determined to be cocaine base to the floor. However the baggie dropped outside the door below the door and wheel frame. The baggie was recovered by Officer Mejia and given to Officer Stevens. Sixty-three dollars in cash was found on the seat of the truck. Defendant’s wallet contained $410. No smoking paraphernalia was found inside the truck. Based upon his experience and observations, Officer Stevens believed the cocaine base was possessed for purpose of sale. Officer Mejia also testified that he believed the cocaine pieces contained in the baggie was possessed for sale.
Defendant argues that he was entitled to the appointment of an attorney to represent him at a pretrial substitution of counsel hearing. Defendant further argues that the trial court failed to adequately inquire into the relevant circumstances of his request for substitution of counsel. On July 11, 2007, just prior to jury selection, defendant told the trial court: “I’m not ready for the preliminary hearing. I was never told anything about it. I am not prepared for this. And I want to change lawyers because I feel that my lawyer is not helping me. I want to change lawyers.” The trial court then conducted a substitution of counsel hearing. When asked why he thought he was not being properly represented, defendant responded: “Well, because I feel that he’s not helping me. And I want to change attorney because I’m not prepared for this.” The trial court inquired, “In what way is he not properly representing you?” Defendant responded: “I - - because I didn’t know when they took me to - - what do you call - - that court preliminary, and he didn’t tell me anything. I am not prepared for this. Well, I didn’t know that I could change attorneys. I am very ignorant. I didn’t know I could do this. I’m not prepared for this.” The trial court then asked what task defense counsel had not performed that defendant felt should have been done. Defendant answered, “Well, I’ve been telling him what’s been happening to me for three months.” When asked for specifics, defendant said: “I have been telling him that I’m a drug addict and I wanted a program because I have my family that - - I have three children. My family counts on me. I work every day. I’m a plumber. I told him that I earned $600 a week, and I give $500 to my wife, and I spend $100 on my habit. [¶] I don’t want to wind up at the extreme of stealing cars or stealing stereos, to go into stores and steal something, to steal a bicycle. I asked him to help me, that he help me, because I have my family. That’s why - - ” The trial court responded: “What you’re asking him to do is to get you a better deal than the deal that’s been offered? Is that what you are saying?” Defendant responded, “Yes.” The trial court noted: “Unfortunately, he does not have control over that. That’s up to the prosecution, in terms of what they’re willing to offer. [¶] I know that he has worked diligently in terms of getting an offer for you. He had an offer for you yesterday. I know that you spent at least an hour or two with him discussing that offer. That offer was substantially better than it had been earlier in the case. He doesn’t have any control over that. He has no control over what the prosecution will offer.” Defendant responded: “Well, I know that drug addicts get offered programs. Why wasn’t - - why not me? Is it because I don’t have papers, or what?” The trial court explained: “No. No. You have a prior conviction for selling drugs, and you have now been accused of selling drugs again. Those are things that the prosecution takes into consideration when they make an offer. And I presume that that’s what their offer was based on.”
Defendant then attempted to explain the circumstances of his arrest. The trial court interrupted: “I don’t - - [defendant], the facts of the case are not helpful in my determination as to whether or not there should be a change of lawyers. What is helpful to me is if you are able to tell me things that [defense counsel] should have done that he has not done. [¶] Now, you’ve told me that you’re unhappy with the offer that’s been given to you because you - - because, one, you’re an addict and, two, you know that other addicts have received programs. And you’re upset because the prosecution is not offering you a program. I understand that. [¶] Is there anything else?” Defendant responded: “I want you to give me a program. My - - [¶] . . . [¶] I want you to help me. I have three children. I have three children and a wife. I have a job. I’ve been working for a long time. I don’t go around selling drugs, not at all.” The trial court answered: “That’s what the purpose of a trial is. It’s to determine whether or not the prosecution can prove beyond a reasonable doubt that you possessed cocaine for the purpose of sale and that you transported cocaine. That’s what they have to prove. [¶] And you’ve asked for a trial, and that’s what the court is going to provide you with today.”
After further explanation of what the trial would involved, the trial court denied the substitution of counsel motion, stating: “At this point, you have not provided me with any information that would indicate that there’s been a breakdown in the relationship between you and [defense counsel] of such a kind as would make it impossible for [defense counsel] to properly represent you. [¶] He’s prepared to take this matter to trial. He has announced that he’s ready. He has done his homework. And that’s where we are at the moment. [¶] So your motion to have him relieved and new counsel appointed is denied. This motion is being made on the eve of trial. [¶] The jury is actually in the hallway now, as well.” Defendant then spoke in Spanish. The interpreter asked if the trial court wanted a translation. The trial court responded, “No. [¶] [Defendant], this hearing is over at this point. I understand what your concerns are.” The interpreter explained that defendant wanted to continue to speak. The trial court said, “He has to go through his lawyer at this point.”
A criminal defendant has a right to assignment of another lawyer on demonstrating that his or her right to counsel would be substantially impaired. (People v. Abilez (2007) 41 Cal.4th 472, 487-488; People v. Marsden (1970)2 Cal.3d 118, 123.) The California Supreme Court recently reiterated: “‘“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. [Citation.] A defendant is entitled to relief 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].” [Citations.]’” (People v. Abilez, supra, 41 Cal.4th at pp.487-488; People v. Mendoza (2000) 24 Cal.4th 130, 157; People v. Hart (1999) 20 Cal.4th 546, 603, People v. Fierro (1991) 1 Cal.4th 173, 204; People v. Crandell (1988) 46 Cal.3d 833, 854; see also People v. Nakahara (2003) 30 Cal.4th 705, 718; People v. Barnett (1998) 17 Cal.4th 1044, 1085; People v. Hines (1997) 15 Cal.4th 997, 1025.)
The California Supreme Court has also addressed the issue of whether a criminal defendant who seeks to substitute counsel because of inadequate representation or irreconcilable conflict is entitled to the appointment of another lawyer to provide legal assistance at the hearing. In People v. Hines, supra, 15 Cal.4th at pp. 1024-1025, the Supreme Court held that a trial court did not have duty to appoint such independent counsel to assist the defendant, particularly in the absence of a request. Moreover, the Hines court held: “[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. Appointment of independent counsel to assist a defendant in making a Marsden motion is likely to cause unnecessary delay, and may damage the attorney-client relationship in those cases in which the trial court ultimately concludes that the motion should be denied. We see no need for trial courts to appoint independent counsel to assist defendants making such motions. (See People v. Smith[(1993)] 6 Cal.4th [684,] 695; People v. Daniels (1991) 52 Cal.3d 815, 848.)”
Defendant argues that he had a difficult time relating the exact nature of his complaint to the court because he was illiterate and spoke only Spanish. However, the record refutes that contention. Defendant related his concerns to the trial court and understood the questions that were asked. The trial court allowed defendant to repeat his concerns several times over before denying the motion. The trial court’s refusal to hear further argument following his ruling was reasonable. Defendant failed to demonstrate any need for additional counsel to assist him. In this case, the jury was literally waiting in the hall to commence voir dire. Moreover, defendant had no constitutional right to the assistance of a separate attorney to argue that appointed counsel was ineffective and should be replaced. (People v. Hines, supra, 15 Cal.4th at p. 1025; People v. Daniels, supra, 52 Cal.3d at p. 848.)
The judgment is affirmed.
We concur: ARMSTRONG, J. KRIEGLER, J.