Filed 4/15/14 P. v. Davis CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                     COURT OF APEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D062881

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. Nos. SCE310564 &
                                                                     SCE319395)
CURTIS J. DAVIS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Herbert J.

Exarhos, Judge. Affirmed.



         Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Heather M.

Clark, Deputy Attorneys General, for Plaintiff and Respondent.
           Defendant and appellant Curtis J. Davis appeals from a conviction by jury,

claiming the trial court erred in failing to conduct a Marsden1 hearing. Because the

record shows Davis fully presented his claim of alleged ineffective assistance of counsel

in two significant handwritten letters he sent the court and because the court considered

those letters before ruling on his claim, we conclude that the court did not err when it did

not conduct a separate Marsden hearing. Furthermore, we conclude that the court did not

abuse its discretion in denying Davis substitution of counsel based on the content of his

letters.

                                                I

                  STATEMENT OF FACTS AND PROCEDURAL HISTORY

           Between the time Davis was convicted and the time he was sentenced, Davis sent

two handwritten letters to the trial court explaining why he had allegedly received

ineffective assistance of counsel at trial. In the letters, Davis mentioned that trial counsel

did not follow Davis's request to call additional witnesses, did not heed Davis's thoughts

on jury selection, and did not spend sufficient time with him. Davis also wrote, "I would

like to take back my plea[2] . . . and proc[e]ed to trial by judge (you) pro-per [and] fire

my lawyer." Davis stated that trial counsel had not explained the plea agreement to him.

In the other letter, Davis wrote, "I feel I have ground[s] for a new trial on ineffective

[assistance] of counsel."

1          People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

2       Davis pleaded guilty in case No. SCE319395 to assault and to damaging a prison
or jail. He was convicted of the remaining attempted murder count by a jury the next
day. In related case No. SCE310564, Davis pleaded guilty to robbery and possession of
methamphetamine for sale.
                                                2
       The record shows at Davis's sentencing hearing, defense counsel brought Davis's

letters to the court's attention. The court in response stated it had reviewed the letters. It

then denied Davis's motions "both as to the motion for new trial and as to the

appointment of counsel" because the court found "nothing [in the letters rose] to the level

that would warrant the appointment of counsel." The trial court then proceeded with the

sentencing.

       On appeal, Davis contends the trial court erred in not conducting a separate

Marsden hearing in order to evaluate his ineffective assistance of counsel claim.

                                              II

                                   LEGAL PRINCIPLES

       A. Marsden

       "[A] judge who denies a motion for substitution of attorneys solely on the basis of

his courtroom observations, despite a defendant's offer to relate specific instances of

misconduct, abuses the exercise of his discretion to determine the competency of the

attorney." (Marsden, supra, 2 Cal.3d at p. 124.) When a defendant moves for

substitution of appointed counsel, the court must afford the defendant an opportunity to

enumerate any specific examples from outside the courtroom of counsel's alleged

inadequate representation. (People v. Smith (1993) 6 Cal.4th 684, 690-691.) Whether to

grant a defendant's request for substitution of appointed counsel is a matter of judicial

discretion. (Id. at p. 690.) The trial court should appoint substitute counsel when, at any

stage of the proceeding (including postconviction), the defendant makes a proper

showing under the Marsden standard. (Id. at p. 696.)



                                               3
       A trial court must conduct a Marsden hearing "when there is at least some clear

indication by the defendant, either personally or through counsel, that the defendant

wants a substitute attorney." (People v. Sanchez (2011) 53 Cal.4th 80, 84, 91.) A formal

legal motion is not necessary. (Id. at p. 88.)

       B. Written Letters to the Trial Court

       When, as in the instant case, "the basis of a defendant's dissatisfaction with

counsel is set forth in a letter of sufficient detail[,] . . . a full-blown hearing is not

required." (People v. Wharton (1991) 53 Cal.3d 522, 580 (Wharton).) In Wharton, the

defendant—like Davis here—sent a detailed letter to the trial judge explaining why he

was dissatisfied with his attorney. (Ibid.) The defendant complained that his attorney did

not spend sufficient time with him and was distracted by other cases. (Ibid.) Our

Supreme Court concluded that a Marsden hearing was not required in that situation

because the grounds for ineffective assistance (and hence substitution) of counsel had

been heard and considered by the trial court through the defendant's letters. (Id. at pp.

580-581.) The Wharton court thus concluded the trial court could properly find that the

defendant's attorney had been adequately prepared. (Ibid.)

       In a similar case to Wharton, People v. Freeman (1994) 8 Cal.4th 450 (Freeman),

our Supreme Court once again concluded that the trial court was not required to hold a

Marsden hearing when the defendant had itemized his complaint in a "self-contained

document." (Id. at p. 481.) In Freeman, the defendant filed a formal written petition for

new counsel on a form that permitted him to state facts which supported his request.

(Ibid.) Concluding that the defendant already had the equivalent of a Marsden hearing,

the Freeman court stated: "The form he used permitted him to state all reasons for the

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relief requested. . . . There was no reason for the trial court to suppose defendant

withheld his reasons or supporting facts, or wished to state further examples of counsel's

inadequate representation. He certainly did not 'offer to relate specific instances of

misconduct.'" (Ibid.)

                                             III

                                        ANALYSIS

        The record here shows the court at sentencing acknowledged Davis's request for

substitute counsel. Because a formal motion requesting substitute counsel is not required,

Davis's "motion" for appointment of such counsel was properly made through either his

letters or defense counsel at sentencing. (See People v. Sanchez, supra, 53 Cal.4th at pp.

87-88.)

        The primary issue here is whether the letters David sent the trial court were

sufficient to obviate the need for a separate Marsden hearing. We conclude under

Wharton and Freeman that they were. In his correspondence between conviction and

sentencing, Davis brings up four reasons he believed he received inadequate

representation, thus requiring appointment of substitute counsel. We consider each in

turn.

        A. Lack of Time with Counsel

        Davis indicated that he "never met [with his] investigator" and that he saw his

appointed counsel only once in a year and a half because counsel happened to have

another pending case at the same time. However, there is no reason to believe a Marsden

hearing would have helped Davis explain anything more on this contention. Similar to

Wharton, in the instant case "it appears '[t]he court . . . was aware of the grounds for

                                              5
defendant's motion and satisfied itself that counsel was in fact adequately prepared

although he might not have communicated fully with his client.' [Citations.]" (See

Wharton, supra, 53 Cal.3d at pp. 580-581.)

       B. Jury Selection

       Davis also noted in his letters that his counsel "kept [on the] jury members [Davis]

asked him not to." With respect to peremptory challenges, our Supreme Court has

repeatedly rejected claims of ineffective assistance based on the exercise of such

challenges, noting the inherently subjective and intuitive nature of the jury selection

process. (People v. Ochoa (1998) 19 Cal.4th 353, 448.) As such, we conclude a

Marsden hearing was unnecessary to evaluate further this contention by Davis.

       C. Failure to Call Witnesses

       Davis mentioned in one of his letters that he "gave [his] lawyer a list of people to

call who were at the party the morning of the incident . . . ." Davis states that his account

of the party was contested at trial and that his witnesses would have provided him an

alibi. Davis further alleged in the second letter that defense counsel "never called any

witness" Davis asked him to.

       Davis's defense to the attempted murder charge was that he was not the person at

the store who shot the victim at approximately 7:15 a.m. on December 11, 2009. Davis

maintained that he had been with his friend the night before the shooting. According to

the defense, "Davis got drunk the night before [the alleged incident] and did not show up.

Davis was 'living it up' . . . drinking and smoking marijuana for three days straight, and

his memory was foggy."



                                              6
       According to the defense, on the morning of the shooting Davis's girlfriend, Bambi

Praytor, picked him up at his friend's place. According to the defense, Davis was either

with Bambi or at her apartment at the time of the shooting but not at the store where the

shooting occurred. Bambi Praytor testified that she picked up Davis from his friend's

place at approximately 7:00 a.m., where he had been partying since the previous night.

       Davis thus contends the trial court could not have ruled intelligently on his request

for new counsel without knowing what witnesses he referenced in his letters or what they

would have testified to if they had been called, as he requested of his counsel. In other

words, Davis alleges the trial court improperly denied him substitute counsel without

following up on his letters by questioning him about his proposed witnesses.

       In support of his position, Davis cites to People v. Stewart (1985) 171 Cal.App.3d

388, 394-397 (Stewart), disapproved on other grounds in People v. Smith

(1993) 6 Cal.4th 684, 691-696 (Smith) and People v. Winbush (1988) 205 Cal.App.3d

987.

       In Stewart, the defendant told the judge he had been inadequately represented

because defense counsel did not contact the defendant's personal doctor and because

counsel did not call as witnesses two people "on the fourth floor." (Stewart, supra, 171

Cal.App.3d at p. 398.) The Stewart court concluded that, although the doctor's testimony

was not material, the trial court improperly denied Stewart's substitution motion without

inquiring into the other two witnesses' proposed testimony. (Ibid.)

       In the instant case, there is no reason to believe Davis had anything more to say

regarding the potential alibi witnesses and, as such, no separate Marsden hearing was

required. His letter mentions that they would confirm his story that he was partying the

                                             7
night prior to and on the morning of the shooting (i.e., "who were at the party the

morning of the incident"). Unlike in Stewart where the court could not reasonably know

what the witnesses on the fourth floor would have said, here, the record does show that

the proposed witnesses were allegedly additional alibi witnesses. Because the letters

Davis submitted are self-sufficient, we conclude a Marsden hearing would have added

nothing to Davis's contention.

       Further, the court did not abuse its discretion in denying substitution of counsel

because it was reasonable to believe that new alibi witnesses, apart from Bambi Praytor,

would not change the outcome of the jury when there was other strong evidence of

Davis's guilt, such as identification from a lineup by the victim and phone records with

text message exchanges between Davis and the victim immediately preceding the

shooting. In fact, Davis, in his own letter to the trial court, mentions, "Yeah, I expected a

guilty verdict but not of the higher charge."

       D. Withdrawal of Guilty Plea

       Davis states in his letter to the trial court, "I would like to take back my plea [and]

separate my case from Miss Praytor." However, the record shows that Davis entered into

his plea agreement freely and voluntarily. Indeed, the record shows the court explained

the terms of Davis's plea bargain, and then the following exchange ensued:

       "The Court: Most importantly, Mr. Davis, are you entering this plea freely

and voluntarily?

       "The Defendant: Yes, I am.

       "The Court: Nobody is coercing you or forcing you to do it?

       "The Defendant: No.

                                                8
       "The Court: Is it safe to say that you have discussed it with your attorney

and you have made this decision as a defense tactic and as a part of your strategy,

correct?

       "The Defendant: Yes, I am.

       "The Court: In fact, you're pleading guilty because in fact you really are

guilty; is that a fair statement?

       "The Defendant: Yes, I am."

       In other words, the record shows that Davis was adequately represented at the time

his plea was negotiated. Hence, the trial court did not abuse its discretion in deciding not

to conduct a separate Marsden hearing and appointing Davis new counsel. (See Smith,

supra, 6 Cal.4th at pp. 696-697 [noting that substitution of counsel required an

irreconcilable conflict between the attorney and the defendant during events preceding

the guilty plea].)

       In sum, we conclude there was no necessity for a separate Marsden hearing under

the facts before us because the two letters Davis wrote to the trial court were self-

contained and sufficiently apprised the court of the reasons for his request for substitute

counsel.




                                              9
                                         IV

                                   DISPOSITION

      The judgment of conviction is affirmed.


                                                 BENKE, Acting P. J.

WE CONCUR:


O'ROURKE, J.


IRION, J.




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