Filed 5/30/13 P. v. Thornton CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                     F064859

                   v.                                                     (Super. Ct. No. F09904930)

OLICE DAVID THORNTON, JR.,                                                         OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. Mark Wood
Snauffer, Judge.
         Michael B. McPartland, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Wiseman, Acting P.J., Cornell, J., and Franson, J.
       On July 19, 2010, a jury convicted appellant, Olice David Thornton, Jr., of two
counts of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) and found true
allegations that in committing one of those offenses, he personally inflicted great bodily
injury (§ 12022.7, subd. (a)), and that he personally used a dangerous and deadly weapon
in committing each of them. In a court trial the next day, the court found true allegations
that appellant had suffered two “strikes”2 and two prior serious felony convictions within
the meaning of section 667, subdivision (a)(1), and that he had served three separate
prison terms for prior felony convictions (§ 667.5, subd. (b)). On September 8, 2010, the
court struck one of appellant’s strikes and imposed a prison term of 22 years.
       Appellant appealed, and on appeal his sole contention was that the court erred in
failing to conduct a Marsden hearing.3 This court, on October 24, 2011, reversed,
holding that the court erred in failing to conduct a Marsden hearing, and remanded the
matter to the trial court, ordering, inter alia, that the court conduct such a hearing.
       On remand, on April 27, 2012, the trial court conducted a Marsden hearing, at
which it denied appellant’s Marsden motion and reinstated the judgment. The instant
appeal followed.


1      All statutory references are to the Penal Code.
2       We use the term “strike,” in its noun form, as a synonym for “prior felony
conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i),
1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant
to the increased punishment specified in the three strikes law.
3      In People v. Marsden (1970) 2 Cal.3d 118 (Marsden), the California Supreme
Court held that when a criminal defendant requests a new appointed attorney, a trial court
must conduct a proceeding in which it gives the defendant an opportunity to explain the
basis for the contention that counsel is not providing adequate representation. (Id. at pp.
123-125.) A motion for the appointment of substitute counsel on the ground that the
current appointed counsel is providing inadequate representation, and the hearing on that
motion, are commonly called, respectively, a Marsden motion and a Marsden hearing.


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        On appeal, appellant’s sole contention is that the court erred in denying his
Marsden motion. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
Facts
        Keith Thompson testified to the following: He was living at the Fresno Inn (the
motel) when, one day in July 2009, at approximately 10:30 or 11:00 a.m., Zachariah
Boyd came to Thompson’s room, at which time Thompson gave Boyd some marijuana.
Boyd then left and Thompson, who was “working in the office,” went to the motel office.
When he returned to his room approximately ten minutes later, he found that the door to
his room had been kicked in and that his marijuana was missing. Boyd was the only
other person who knew where in the room Thompson kept his marijuana. Later, while
Thompson was fixing his door, appellant came by. He wanted to buy some marijuana.
Thompson explained that Boyd had kicked his door in and stole his (Thompson’s)
marijuana.
        Zachariah Boyd testified to the following: He was living at the motel when, on
July 17, 2009, at approximately 4:45 p.m., appellant knocked on his door. Boyd came to
the door and appellant asked him to “step outside ....” Boyd did so, and appellant
immediately began yelling, accusing him of stealing marijuana “from somebody’s motel
room,” and demanding that Boyd turn the marijuana over to him or “pay him ... an
amount of money.” Appellant was “obviously pretty upset,” so Boyd, who had not stolen
the marijuana, “tried to agree with him, and ... not do anything to upset him more.” As
the two talked, Boyd noticed that appellant was holding in his right hand an axe handle,
approximately three feet in length. Subsequently, appellant told Boyd, “‘You owe me
like a hundred dollars,’” and “at that point” appellant swung the axe handle at Boyd and
struck him in the left shoulder, “and [the axe handle] bounced off and hit [Boyd] in the
cheek.” After appellant hit him, Boyd “raised [his] hands up” and said he would do

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whatever appellant wanted and “try to make it right.” Appellant walked away and Boyd
went to his room and put an ice pack on his shoulder. Boyd suffered a “[b]it of bruising,
bit of swollen ness [sic], but other than that, no [other injuries].”
       James Salyer testified to the following: On July 17, 2009, at approximately 5:00
p.m., he was in his room at the motel when somebody came to his door and told him
appellant, who was a friend of Salyer’s, was “hitting people with an ax[e] handle.”
Salyer went outside “to try to calm [appellant] down.” Salyer approached appellant, who
was “by the stairs on the west side of the motel premises.” Appellant was “headed
towards the stairs to chase down” Boyd and another motel resident, who were trying to
get away from him. Appellant was “pretty enraged,” and he was holding in his right hand
an approximately three-foot-long axe handle.
       Salyer further testified to the following: As he approached appellant, appellant
told him, “‘Mind your own fucking business.’” Salyer admonished him to “just calm
down” and “think about what [he was] doing,” at which point appellant first punched
Salyer in the face and then swung the axe handle and “hit [Salyer] across [his] back, [his]
shoulder blade and back area.” Next, appellant again swung the axe handle, this time at
Salyer’s head. Salyer blocked it with his left hand, “and it crushed two bones in [his]
hand ....” Salyer “then ... got up off the ground, and [appellant] swung [the axe handle] a
third time, and it split open the back of [Salyer’s] head.”
       City of Fresno Police Officer Carlos Frausto testified to the following: At
approximately 5:00 p.m. on July 17, 2009, responding to a report of a “disturbance ...
involving three subjects” at the motel, he drove into the motel parking lot and saw
appellant holding an axe handle in his right hand, raised above his head. Frausto got out
of his car and told appellant to “get on the ground,” but appellant instead went inside a
room. He came out approximately 30 seconds later, without the axe handle. Frausto
again ordered appellant to get on the ground, and this time appellant complied. The

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officer then went into the room from which appellant had just exited, and found the axe
handle in a corner of the room.
       Ozell Littleton testified that he was employed as the manager of the motel when,
at approximately 5:00 p.m. on July 17, 2009, he observed the following on a video
monitor in his office at the motel: A group of approximately 10 to 15 people approached
another group of approximately the same size “over by the stairs.” Persons in both
groups were “gesturing back and forth at each other,” “obviously talking to each other.”
At one point, appellant, who “had a stick in his hand,” “hit” Salyer.
       Robert Hawkins testified to the following: He is a paramedic. He treated James
Salyer on July 17, 2009. Salyer reported he was struck twice with a wooden axe handle,
once to the back of the head and once to his left shoulder. Salyer also reported he injured
his hand when he fell to the ground.
Procedural Background
       Appellant was represented at his jury trial and court trial by appointed counsel,
attorney Mark Asami. Following these trials, appellant, in a letter to the trial court dated
August 2, 2010, stated he was “seeking a granting on a new trial based on ineffective
counseling by attorney” (sic), and asserted the following: (1) during jury selection, some
prospective jurors “made comments on the defendants failure to testify,” and as a result
“there was a discriminating seed pla[]nted in ... the mind[s]” of jurors, thereby violating
appellant’s Fifth Amendment right against self-incrimination; (2) there were many
“inconsistencies” in the testimony of prosecution witnesses; (3) some of that testimony
“should have been excluded”; and (5) “nothing was proven beyond a reasonable doubt.”
(Unnecessary capitalization omitted.)
       At the outset of the sentencing hearing on August 17, 2010, the court noted that it
had received appellant’s letter, and thereafter stated it needed additional time to consider
issues related to sentencing, and continued sentencing to September 8, 2010. The court

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sentenced appellant on that date. At that hearing, no mention was made of appellant’s
letter or any of the matters raised by appellant in that letter.
       Appellant appealed. On appeal, this court held the trial court erred in failing to
conduct a Marsden hearing, and remanded the matter, directing the court to conduct such
a hearing.
       On remand, a hearing was conducted on April 27, 2012, at which appellant and
Asami appeared. The prosecutor was excluded. At the outset of the hearing, the court
noted it had been directed to conduct a Marsden hearing, and stated “that’s what we’re
going to do now,” and invited appellant to speak. Appellant responded that in the letter
he had written he was “asking for a new counsel” because he “wasn’t getting a full ...
representation,” he “figured [Asami] didn’t know [appellant’s] case,” “there was a lot of
inconsistencies and stuff that shouldn’t have been allowed into testimony,” and “[m]y
witnesses weren’t put on the stand on my behalf, ... so that’s why I wrote you ....” The
court asked for names of the witnesses who were not called, and “What were theses
witnesses going to show?” To this question and subsequent questions by the court,
appellant gave a series of rambling responses that were, for the most part, directed at
what he characterized as “a lot of things that [were] said [at trial] [were] inconsistent,”
but he did not tell the court what witnesses were not called and what their testimony
would have been if called.
       Subsequently, Asami, in response to questioning by the court, named seven
persons from whom his investigator obtained statements prior to trial, and stated that he
(Asami) “[a]t points ... was with the investigator” when these persons were interviewed.
The named persons included Keith Thompson, who was called as a defense witness, and
the following persons who Asami did not call as witnesses: Jennifer Ortiz, Cecilia
Milton and Howard Stockard II. Asami explained: “ ... whatever witnesses presented at
trial were witnesses that we thought could help, but obviously there [were] many

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witnesses I think here that were interviewed that we did not think were going to be very
helpful to [appellant’s] case. [¶] ... [M]any of [the persons interviewed], I did not feel
were particularly helpful.”
       Appellant stated that the names Asami listed were the names of all the potential
witnesses he (appellant) had given Asami. At that point, the court asked Asami to
“summarize what these witnesses had to say in terms of [appellant].”
       Asami responded first that Ortiz “was at the Fresno Inn,” she saw appellant
“speaking with [Boyd] at [Boyd’s] room,” she saw “the officers arrive,” and “when the
officer arrived,” appellant “did not have anything in his hands.”
       Asami also stated that Cecilia Milton is appellant’s wife and that she “recall[ed]
[appellant] going over to [Boyd’s] room to confront him about breaking into
[Thompson’s] room”; “[s]he does not think [appellant] had the stick when he went over
to [Boyd’s room]”; she saw “[Salyer] walk up to [appellant] and hit him,” at which point
“[appellant] hit [Salyer] with a stick he walks the dog with”; and “when the officers
arrived, [appellant] did not have the stick and ... it was already in the room.”
       Asami also stated that Stockard stated the following: Stockard, after “he found out
[appellant] was speaking with [Boyd] by [Boyd’s] room,” went to Boyd’s room “to see
what the problem was,” knocked on the door and, when Boyd answered, asked Boyd “if
everything was okay.” Boyd “stated everything was fine ....” He “didn’t look injured or
upset at all.”
       Stockard further stated, according to Asami, the following: Stockard “began
talking with Cindy,” who he “characterized as [Salyer’s] wife.” He had “his back to
[Salyer] and [appellant],” who “were talking and not angry.” Appellant “was leaning on
his stick he walks his dog with.” Stockard “heard Cindy gasp and turned around towards
[appellant] and [Salyer]” at which point Stockard “saw [Salyer] bleeding and [appellant]
was holding onto the stick.”

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       After Asami had summarized the statements obtained from all the persons he had
previously listed,4 the court, addressing appellant, stated: “Based on those statements it
appears to me that the defense counsel in this case, through either himself or his
investigator, talked to these witnesses, and I can’t see any of that testimony that’s helpful
to you. Now do you see it otherwise and are there any.”
       At that point, appellant interrupted with another rambling response in which, as
best we can determine, he questioned the evidence against him. However, he did not
explain what testimony could have been offered that was not offered that would have
been favorable to him.
                                       DISCUSSION
       Appellant contends it was established at the Marsden hearing that three persons
interviewed by the defense team—Jennifer Ortiz, Cecilia Milton and Howard Stockard
II—could have provided testimony favorable to the defense; appellant’s appointed
counsel “provided ineffective assistance” by not calling these persons as witnesses at
trial; this showing of ineffective assistance of counsel “was sufficient to support a motion
for new trial,” and therefore the court abused its discretion in denying appellant’s
Marsden motion. We disagree.
Legal Background
       Under Marsden, a defendant’s 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



4    As discussed more fully below, appellant’s argument on appeal is directed at
Asami’s failure to call as witnesses Ortiz, Milton and Stockard. Therefore, we do not
summarize Asami’s comments regarding the other persons interviewed.


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representation is likely to result.’”’” (People v. Welch (1999) 20 Cal.4th 701, 728
(Welch).)5
       This standard applies regardless of whether the Marsden motion is made before or
after trial. (People v. Smith (1993) 6 Cal.4th 684, 695 (Smith).) Thus, if the motion is
made after trial, and if the “defendant satisfies the trial court that adequate grounds exist,
substitute counsel should be appointed.” (Ibid.) “Substitute counsel could then
investigate a possible ... motion for new trial based upon alleged ineffective assistance of
counsel. Whether, after such appointment, any particular motion should actually be made
will, of course, be determined by the new attorney.” (Id. at pp. 695-696.)
       “The court should deny a request for new counsel at any stage unless it is satisfied
that the defendant has made the required showing. This lies within the exercise of the
trial court’s discretion, which will not be overturned on appeal absent a clear abuse of
that discretion.” (Smith, supra, 6 Cal.4th at p. 696.)
       “Once an attorney is appointed to represent a client, he assumes the authority and
duty to control the proceedings. The scope of this authority extends to matters such as
deciding what witnesses to call ....” (People v. McKenzie (1983) 34 Cal.3d 616, 631,
disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
“Whether to call certain witnesses is ... a matter of trial tactics, unless the decision results
from unreasonable failure to investigate.” (People v. Bolin (1998) 18 Cal.4th 297, 334.)
“‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim
of ineffective assistance of counsel [citation], and there is a ‘strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’”
[Citations.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and


5     Appellant does not argue that the record shows that he and Asami had become
embroiled in an irreconcilable conflict.


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we have explained that “courts should not second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight” [citation].’” (People v. Jones (2003) 29 Cal.4th
1229, 1254.)
Analysis
       We address, in turn, appellant’s arguments as to each of the three persons he
claims Asami was remiss in not calling as a witness.
       Appellant contends Jennifer Ortiz could have offered testimony favorable to
appellant, specifically, “that she saw appellant talking to [Boyd] at his room, but she
never saw a stick in his hands.” However, the record does not support the claim that
Ortiz “never” saw appellant holding a stick or axe handle.
       The following colloquy ensued at the Marsden hearing after the court asked Asami
to state what the persons interviewed had said to Asami and/or the defense investigator:
       “MR. ASAMI: Jennifer Ortiz, she was at the Fresno Inn. She saw [appellant]
speaking with [Boyd] at [Boyd’s] room. She saw the officers arrive. [Appellant] did not
have anything in his hands.
       “THE COURT: Did not what?
       “MR. ASAMI: Anything in his hands when the officer arrived.” (Italics added.)
       A fair reading of the foregoing is not that Ortiz never saw appellant empty-handed,
but only that, by Ortiz’s account, appellant was not holding the axe handle when the
police arrived. Although this is at odds with Officer Frausto’s testimony that appellant
was holding an axe handle when he (the officer) drove into the motel parking lot, such
testimony related to what occurred after the assaults. Thus, Asami reasonably could have
concluded that Ortiz’s testimony was far from crucial and would not have been
particularly helpful to appellant.
       Appellant also contends Cecilia Milton could have provided testimony favorable
to the defense, citing Asami’s statements that Milton stated, “She does not think

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[appellant] had the stick when he went over to [Boyd’s room]” and that Salyer hit
appellant before appellant hit Salyer with a “stick.” (Italics added.) We note first that
evidence of what Milton thought, as opposed to what she saw, would be, if admissible at
all, not particularly compelling. Moreover, although competent testimony that appellant
acted in self-defense would have been favorable to appellant, Asami also indicated that
Milton stated that appellant went to Boyd’s room to “confront” him about breaking into
Thompson’s room. Such testimony would have provided some corroboration for Boyd’s
testimony as to the assault, and suggested that appellant harbored ill will toward Boyd
when he went to Boyd’s room. Given that Milton’s testimony could well have included
this unfavorable evidence, and the danger that the jury would have discounted Milton’s
defense-favorable testimony as biased, as coming from appellant’s wife, Asami’s
decision to not present Milton as a defense witness was a rational tactical choice.
       Finally, appellant faults Asami for not calling Howard Stockard II because,
appellant asserts, Stockard could have testified that he (Stockard) “went to [Boyd’s] room
after appellant had been there, and [Boyd] told him everything was fine and he did not
look hurt.” This evidence would not have been particularly helpful to appellant. It was
essentially consistent with Boyd’s testimony that, after he was assaulted, he walked back
to his room where his only response to his injuries was to apply ice to his shoulder.
Moreover, Asami indicated Stockard also said that appellant was leaning on a stick as
appellant and Salyer exchanged angry words, and that he turned and saw Salyer bleeding
and appellant holding the stick. Such testimony would have been unfavorable to
appellant, and Asami reasonably could have concluded that the risk of such evidence
coming before the jury outweighed any possible benefit from other testimony Stockard
might offer.
       The record thus contains ample support for Asami’s conclusion that calling Ortiz,
Milton or Stockard would not have been helpful to the defense, and therefore it cannot be

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said that “‘“‘the record clearly shows’”’” that Asami was “‘“‘not providing adequate
representation.’”’” (Welch, supra, 20 Cal.4th at p. 728.) The court did not err in denying
appellant’s Marsden motion.
                                    DISPOSITION
      The judgment is affirmed.




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