Filed 9/3/13 P. v. Chatman CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B238237

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. NA087422)
                   v.

DARRYL CHATMAN,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Richard R. Romero, Judge. Affirmed.



         Michael Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.




         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Darryl Chatman was convicted by jury of one count of
carjacking. On appeal, defendant contends the court erred in denying his request for
substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123-125
(Marsden), and that he was denied the effective assistance of counsel. We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Sometime shortly before 5:00 on the morning of November 23, 2010, three
individuals called 911 and reported a car accident involving a black Chevy Silverado
truck in the vicinity of 7th Street and Atlantic Boulevard in the City of Long Beach. The
individuals reported the sound of tires “burning” rubber, and of the truck hitting several
parked cars. Police officers were dispatched to the scene.
       Esther Gale lived near the site of the accident and awoke to the sound of
screeching tires. She stepped outside, smelled the distinct odor of burning rubber, and
saw a black truck careening down the street, hitting parked cars, a fence, at least one tree
and ultimately coming to a stop near an alley. She saw an individual get out of the truck,
wearing a plaid shirt. He had a cell phone to his ear, and he looked right at her as he
walked past and turned the corner.
       James Richardson, a patrol officer with the Long Beach Police Department,
reported to the scene in response to the dispatch call. He saw a black truck crashed on
the sidewalk of 7th Street, near Lime Street. Several bystanders told him they saw
individuals running down Lime Street. As Officer Richardson drove down Lime Street,
he saw a Hispanic male waving his arms at him “frantically” and trying to get his
attention.
       Mario Reyes was the man who flagged down Officer Richardson. Mr. Reyes had
been driving his truck near 8th Street on his way to his job loading fruit. While stopped
at an intersection, a man he did not know (but later identified as defendant) walked up to
the passenger side of his truck. The window was rolled down and defendant asked if
Mr. Reyes had any change. He said no, at which point defendant tried to yank open the
passenger door, yelling at Mr. Reyes to give him the keys to the truck and leave.
Defendant also pointed to some sort of identification badge on his shirt and claimed to be
a police officer.

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       Defendant opened the passenger side door, climbed into the truck and tried to
position himself between Mr. Reyes and the steering wheel. The two fought to control
the steering wheel. Mr. Reyes pressed his foot on the brake pedal, but defendant stepped
on the gas, causing the tires to burn rubber. Defendant eventually was able to
commandeer the truck down the street a short way toward 7th Street, veering onto the
sidewalk, hitting three parked cars and eventually crashing to a stop. The air bag
deployed, hitting Mr. Reyes. Defendant fled the vehicle and ran down an alley.
       Mr. Reyes followed defendant and then saw Officer Richardson‟s patrol car and
flagged him down. Mr. Reyes pointed out defendant, who was still in the alleyway.
Officer Richardson told defendant to stand by the front of the patrol car. He noticed
defendant was breathing heavily and smelled of alcohol. He performed a patdown search
of defendant and found several items in his front pants pocket, including three cell
phones. Officer Richardson showed the phones to Mr. Reyes, and Mr. Reyes identified
two of the phones as his. Both of his phones had been set to Spanish and had been in his
truck before the incident.
       Ms. Gale identified defendant in a field identification as the man she saw get out
of the truck and walk past her on the sidewalk.
       Defendant was charged with one count of carjacking (Pen. Code, § 215,
subd. (a))1 and one count of impersonating an officer (§ 146a, subd. (b)). It was also
specially alleged defendant had suffered a prior qualifying strike within the meaning of
the Three Strikes law. (§ 1170.12, subds. (a)-(d).) Defendant pled not guilty.
       Defendant made his first Marsden motion on February 24, 2011. Defendant
advised the court he felt his court-appointed attorney, Mr. Russ, was not keeping in touch
with him, had not tried to present a defense at the preliminary hearing, and was not
following through on inconsistencies in the statements made by the victim, Mr. Reyes.
Defendant contended there had been no carjacking and that his version of the incident
would have been bolstered by showing that Mr. Reyes had given testimony at the



1      All further undesignated statutory references are to the Penal Code.

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preliminary hearing that differed from his statements to the police as reflected in the
police report.
       The court explained the purpose of a preliminary hearing and that the defense
often chooses not to “show [its] hand” to the prosecution, and that it is unlikely for a case
to be dismissed at that stage in the proceedings. The court allowed defendant to clarify
and be more specific about his concerns and then offered Mr. Russ an opportunity to
respond. Mr. Russ explained he had spoken with defendant numerous times and was
taking his claimed defense seriously. He was attempting to investigate defendant‟s
assertion that Mr. Reyes was in fact not a victim but part of a drug-selling operation, and
that there had been no carjacking, but only a drug sale that went badly. Mr. Russ said
time waivers were necessary to perform a complete investigation because individuals
were hesitant to speak honestly about something that could incriminate them.
       At the conclusion of the lengthy discussion with the court and counsel, defendant
said he would continue with Mr. Russ as his lawyer. The motion was denied. Thereafter,
defendant waived time for several months to allow Mr. Russ the opportunity to
investigate and prepare his defense.
       On the eve of trial, defendant made a second Marsden motion. Defendant
complained he had been expected to waive time for trial for some 10 months and yet
Mr. Russ had apparently not completed the investigation into defendant‟s defense. He
expressed his concern that Mr. Russ did not believe or understand the importance of the
three cell phones found on him by the police and what the records for those phones could
reveal about the parties‟ relationship in drug dealing. Defendant claimed Mr. Russ was
defending the credibility of Mr. Reyes and he was very uncomfortable with him. The
court again allowed Mr. Russ to respond and allowed defendant to reply and clarify his
concerns.
       Mr. Russ said he told defendant he had reservations about presenting a defense
that relied solely on claiming the victim was lying about the incident, particularly when
he felt Mr. Reyes did not appear to lack credibility during his testimony at the
preliminary hearing. He said he never told defendant he would not present that defense,
or attempt to highlight the inconsistencies in Mr. Reyes‟s statements. He merely

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explained his concern about hinging the entire defense on showing Mr. Reyes to be a liar.
Mr. Russ explained that phone records he had subpoenaed for the three cell phones had
not shown the call activity defendant had hoped they would. His attempt to speak with
possible witnesses had not been successful either, which he indicated was not surprising
“given that we‟re trying to say that they were involved in drug selling.” Mr. Russ sought
to assure defendant that he was diligently working on the defense and that he would
present his defense to the jury as best he could under the circumstances.
       After a discussion off the record with Mr. Russ, defendant advised the court that
he‟ll “keep him on.” The motion was denied.
       Trial by jury started on September 26, 2011. Defendant made a third Marsden
motion on the morning of the first day of trial. Defendant informed the court he was
frustrated, that Mr. Russ failed to properly appreciate his defense, and had failed to
timely and thoroughly investigate the defense to uncover supporting evidence to bolster
his version of events. Defendant asserted in particular that, despite claiming to do so,
Mr. Russ had not obtained all of the relevant records for the three cell phones. He also
asserted the victim of the alleged carjacking, Mr. Reyes, was not a victim, but an
intermediary for a drug dealer, “Maria,” and that he was supposed to deliver drugs to
defendant for sale. Defendant explained the phone records were crucial because they
would show Mr. Reyes had had telephone contact with Maria or “Greg” (another
individual involved in the sales), supporting defendant‟s claim that Mr. Reyes was part of
the drug sale operation and that he fabricated the carjacking story to protect himself from
criminal liability.
       The court sought to clarify defendant‟s position. “THE COURT: Okay. [¶] So
you‟re hoping that getting the phone records of number X, that number X is going to
show a call to number Y, and number Y belongs to the victim? [¶] THE DEFENDANT:
Yes, sir.”
       Mr. Russ then explained he had indeed subpoenaed the records for all three cell
phones, but had not received a return as to one of the phones. He said the records
received for two of the phones did not show the call activity defendant had hoped. He
described pursuing the missing records for the third phone as a “moot” point “because I

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was able to get the records of the two other parties that [defendant] was hoping we would
be able to show were called by the alleged victim in this case, and one of those parties, in
particular . . . Maria – she is the one who is allegedly a drug dealer. I have all her phone
records. I have gone through them carefully, and she has no phone calls during that
period of time to . . . the victim in this case, which is what [defendant] was saying was
happening. And that was quite an exhaustive effort to get those phone records.”
Mr. Russ also indicated there were no relevant calls for Greg.
       When asked by the court if he had any other concerns with Mr. Russ‟s
representation, defendant said Mr. Russ had threatened him that he “better watch it”
because “there is a fine line between attorney/client privilege.” The court expressed its
confusion about what defendant was trying to relate, and defendant said he understood
Mr. Russ to be threatening to tell the prosecutor about their privileged communications or
“something to that effect.” Mr. Russ said he was not certain what defendant could
possibly be referencing and that he would never threaten a client, and did not threaten
defendant in any way.
       The court then said: “Mr. Chatman, my sense is that you‟re frustrated with the
case, and Mr. Russ is a good target for that frustration. Perhaps, also, you know what‟s
going to happen at trial and you‟re trying to avoid that. So that‟s my suspicion, sir, that
this is all intended to delay things. [¶] I want to make sure you get a fair trial, and
Mr. Russ is a great lawyer. You‟re lucky to have him. There is no basis to excuse him.
So I find that there is no violation here and Mr. Russ is doing an excellent job of
defending Mr. Chatman.” The court denied defendant‟s motion.
       Defendant then exercised his right to represent himself pursuant to Faretta v.
California (1975) 422 U.S. 806. The court questioned defendant on the record about his
request to represent himself at trial, and found defendant to have made a knowing and
voluntary decision to waive his right to counsel and represent himself. Mr. Russ was
relieved of his appointment.
       During trial, defendant presented his defense that Mr. Reyes had fabricated the
carjacking story and was part of a drug-selling operation, making reference to that theory
in both his opening statement and closing argument, and attempting to develop it during

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his cross-examination of the prosecution‟s witnesses. Mr. Reyes denied being a drug
dealer and of knowing defendant, Maria or Greg. Mr. Reyes identified two of the cell
phones recovered from defendant as belonging to him, and that he had set both to the
Spanish language. He said his cell phone was a Samsung with a phone number ending in
7719,2 and that the other phone did not work.
       Officer James Craig testified about his review of the electronic contents of the
three phones recovered from defendant. He explained that two of the phones were
Samsung models, and the other was a Motorola. One of the Samsung models had the
phone number ending in 7719. There was no call activity at all on that phone on
November 23, 2010, the date of defendant‟s arrest on the carjacking charge. The last
incoming call on November 22 was at 5:10 p.m., and the last outgoing call was at
11:37 p.m. None of the calls indicated a “Maria” as the identified contact. Defendant
specifically asked Officer Craig if any of the incoming or outgoing calls for that phone
referenced the phone number ending in 9182.3 Officer Craig said no.
       Ms. Gale testified at trial and identified defendant as the man she saw getting out
of the truck, who then walked past her talking on a cell phone. At the conclusion of the
prosecution‟s case, defendant exercised his right not to testify in his own defense and did
not call any defense witnesses.
       While the jury was deliberating, the prosecution moved to amend the information
to include an omitted allegation identifying defendant‟s prior qualifying strike under
section 667, subdivision (a)(1) (mandatory five-year enhancement for prior strike
qualifying as serious felony). The court granted the prosecutor‟s motion.
       The jury found defendant guilty of carjacking, but was unable to reach a verdict on
count 2, impersonating an officer. On the prosecution‟s motion, count 2 was dismissed.
Defendant waived his right to a jury trial on the bifurcated prior allegations. Defendant


2      For privacy reasons, we have not included the full telephone number set forth in
the record.
3    The record does not reflect to whom this number belongs, but presumably it is a
number defendant believed was pertinent to his defense.

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subsequently admitted his prior conviction for robbery (§ 211). The court found it true
and continued the matter for sentencing. Defendant was sentenced to 23 years in state
prison. This timely appeal followed.
                                        DISCUSSION
   1. The Marsden Motions
       It is well-established that a criminal defendant has the right to timely seek
substitution of appointed counsel based upon a showing of inadequate representation or
an irreconcilable conflict. (Marsden, supra, 2 Cal.3d at pp. 123-125; accord, People v.
Ortiz (1990) 51 Cal.3d 975, 984.) But, the right is not absolute. “ „A defendant is
entitled to have appointed counsel discharged upon a showing that counsel is not
providing adequate representation or that counsel and defendant have become embroiled
in such an irreconcilable conflict that ineffective representation is likely to result.‟
[Citation.] When the defendant seeks to remove appointed counsel „the trial court must
permit the defendant to explain the basis of his contention and to relate specific instances
of counsel‟s inadequacy.‟ [Citation.] The trial court‟s ruling is reviewed for abuse of
discretion.” (People v. Panah (2005) 35 Cal.4th 395, 431.) No abuse of discretion will
be found, unless the court‟s failure to grant the defendant‟s request to substitute counsel
results in the substantial impairment of the defendant‟s right to effective assistance of
counsel. (People v. Gutierrez (2009) 45 Cal.4th 789, 803.)
       As to defendant‟s first two Marsden motions, defendant can claim no error
because the record plainly shows that, after detailed discussions with the court as to the
bases for his concerns, defendant voluntarily agreed to maintain the attorney-client
relationship with his appointed lawyer, Mr. Russ.
       In his third Marsden motion on September 26, 2011, defendant reiterated the same
concern he raised in his first two motions, i.e., counsel did not obtain all the records for
all three cell phones to show a preexisting relationship between the parties that would
support defendant‟s story there had been no carjacking, only a drug deal that went awry.
       As with the first two motions, the court allowed defendant to fully articulate his
concerns on the record and asked Mr. Russ to respond and address defendant‟s
reservations about his representation in reasonable compliance with the court‟s

                                               8
obligations under Marsden. We find the court‟s inquiry into the grounds for defendant‟s
discontent with Mr. Russ was more than adequate. (People v. Abilez (2007) 41 Cal.4th
472, 490-491.)
       The record reflects Mr. Russ investigated the defense that a connection could be
shown to exist between the parties through phone records. He explained that records for
two of the phones subpoenaed did not show any connection. Mr. Russ acknowledged he
did not obtain records in response to the subpoena for the third phone. But he was able to
separately obtain the phone records of Maria and Greg, the two people who defendant
believed had made drug-related calls to, or received calls from, Mr. Reyes, and the phone
records of Maria and Greg showed no such calls to or from Mr. Reyes‟s cell phone.
Mr. Russ‟s representation of defendant and preparation for trial cannot be characterized
as incompetent or deficient simply because he did not pursue the records for the third
phone, when other evidence he was able to obtain during the course of his investigation
negated the proof defendant thought might be contained in those records.
       The evidence at trial appears to have supported the absence of any call activity of
the type defendant had hoped would be shown to have occurred. For instance, defendant
specifically asked about whether phone number ending in 9182 was reflected on the
contents of Mr. Reyes‟s phone. Officer Craig confirmed that it was not, and also stated
there was nothing on Mr. Reyes‟s phone showing a contact named Maria. This evidence
supports Mr. Russ‟s explanation during the third Marsden hearing that he had not found
any relevant call activity on the phone records he obtained regarding Maria and Greg and
the victim, Mr. Reyes.
       There is no showing of an abuse of discretion by the court in denying defendant‟s
September 26, 2011 Marsden motion.
   2. Ineffective Assistance of Counsel
       The burden is on defendant to establish ineffective assistance by a preponderance
of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218 (Ledesma).) There are
two elements to an ineffective assistance claim. “[A] defendant seeking relief on the
basis of ineffective assistance must show both that trial counsel failed to act in a manner
to be expected of reasonably competent attorneys acting as diligent advocates, and that it

                                             9
is reasonably probable a more favorable determination would have resulted in the
absence of counsel‟s failings.” (People v. Cudjo (1993) 6 Cal.4th 585, 623, citing
Strickland v. Washington (1984) 466 U.S. 668, 687-696 (Strickland).)
       On direct appeal, this burden can be stringent. When the record on appeal
“ „ “sheds no light on why counsel acted or failed to act in the manner challenged[,] . . .
unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be rejected.‟
[Citation.] A claim of ineffective assistance in such a case is more appropriately decided
in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-
267, italics added; People v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance
claim properly resolved on direct appeal only where record affirmatively discloses no
rational tactical purpose for counsel‟s actions].)
       To the extent defendant raises an ineffective assistance of counsel claim, it is
based on the same conduct of which defendant complained during the Marsden hearings.
There is a “strong presumption that counsel‟s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action „might be considered sound trial
strategy.‟ [Citation.]” (Strickland, supra, 466 U.S. at p. 689.) As explained above,
Mr. Russ‟s investigative efforts and explanation for not further pursuing the records of
the third cell phone reflect competent, reasoned representation of defendant. Nothing
defendant has presented overcomes the presumption that Mr. Russ‟s conduct in preparing
for trial was anything other than “sound trial strategy” or the result of reasoned choices
within his discretion as to the best course of action to pursue in that regard.
       Moreover, “prejudice must be affirmatively proved. [Citations.] „It is not enough
for the defendant to show that the errors had some conceivable effect on the outcome of
the proceeding. . . . The defendant must show that there is a reasonable probability that,
but for counsel‟s unprofessional errors, the result of the proceeding would have been
different. . . . [Citations.] Specifically, „[w]hen a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent the errors, the factfinder



                                              10
would have had a reasonable doubt respecting guilt. . . .‟ [Citation.]” (Ledesma, supra,
43 Cal.3d at pp. 217-218.)
       Defendant has not shown a reasonable probability the jury would have entertained
a reasonable doubt as to his guilt in the absence of the alleged errors by Mr. Russ.
Ineffective assistance of counsel has not been affirmatively established.
                                     DISPOSITION
       The judgment of conviction is affirmed.


                                                        GRIMES, J.


We concur:


              RUBIN, Acting P. J.


              FLIER, J.




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