Filed 12/3/14 P. v. Hardy CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060456

v.                                                                       (Super.Ct.No. RIF1103524)

TARIUS HARDY,                                                            OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. J. Thompson Hanks,

Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, §6 of the Cal. Const.) Affirmed.

         Law Office of Allison H. Ting and Allison H. Ting, 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, Senior Assistant Attorney General, Barry Carlton, and James

H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant Tarius Javar Hardy broke a window to get into his girlfriend’s

apartment and, after entering her home, refused to allow her to leave the apartment to get

medical help for cuts she sustained from the broken glass. Defendant was convicted of

false imprisonment, first degree burglary, dissuading a witness, and misdemeanor

vandalism. Defendant filed his first appeal in People v. Tarius Javar Hardy (July 1,

2013, E055057 [nonpub. opn.]), in which we affirmed his conviction. However, we

remanded the case to the trial court with directions for it to consider the new trial motion

filed by defendant, which the trial court had refused to consider because he was

represented by counsel. In addition, we directed, if the new trial motion was denied, that

the sentence be modified.

       Upon remand, the trial court first conducted a “quasi-Marsden”1 hearing wherein

it concluded defendant had not made a claim of ineffective assistance of counsel to

support appointment of substitute counsel. It then considered and denied the new trial

motion that had been filed by defendant.

       On appeal, defendant claims the trial court failed to properly inquire into three

new claims of ineffective assistance of counsel raised by him during the quasi-Marsden

hearing and remand is once again necessary in order for the trial court to conduct a new

Marsden hearing to determine if he should be appointed new counsel to pursue these

claims. He also claims that the denial of his Marsden motion violated his due process

rights and such violation warrants reversal of the judgment. We affirm.



       1      People v. Marsden (1970) 2 Cal.3d 118, 124 (Marsden).


                                             2
                                              I

                            PROCEDURAL BACKGROUND

       Defendant was found guilty by a Riverside County jury of false imprisonment

(Pen. Code, § 236)2 (count 1); first degree burglary (§ 459) (count 2); dissuading a victim

(§ 136.1, subd. (c)(1)) (count 3); and a misdemeanor charge of vandalism (§ 594, subd.

(b)(2)(A)) (count 4). Defendant admitted that he had suffered two prior convictions for

which he had served a prior prison term (§ 667.5, subd. (b)), he committed one prior

serious offense (§ 667, subd. (a)), and that he had committed one prior serious or violent

offense (§§ 667, subds. (c)-(e)(1) & 1170.12, subd. (c)(1)). Defendant received a total

state prison sentence of 26 years and 4 months.

       In the prior appeal, we ordered that the sentences on counts 1 and 3 be stayed

pursuant to section 654. We also ordered that the case be remanded in order for the trial

court to consider defendant’s motion for new trial, as will be explained in more detail,

post. Upon remand, the trial court denied the motion for new trial. Defendant was

resentenced. The trial court imposed the upper term of 12 years on count 2, plus 7 years

on the prior convictions, for a total state prison term of 19 years. The trial court stayed

the sentence on counts 1 and 3 pursuant to section 654.




       2      All further statutory references are to the Penal Code unless otherwise
indicated.


                                              3
                                              II

                               FACTUAL BACKGROUND

       The underlying facts are not relevant to the issues raised in the instant appeal.

Briefly, on July 15, 2011, defendant and Andrea Haro had been fighting. At 2:00 a.m.,

defendant broke a window to gain access to her apartment and Haro was cut in the

process. Defendant would not allow her to leave the apartment and took her cellular

telephone so she could not call the police. Defendant eventually fell asleep and Haro was

able to contact the police. Defendant had used violence against Haro on two prior

occasions.

                                             III

                                        ANALYSIS

       Defendant contends that he presented three new colorable claims of ineffective

assistance of counsel that occurred during the trial upon remand that the trial court

ignored: (1) defense counsel refused to allow him to testify; (2) defense counsel urged

him to waive his right to a trial on the prior convictions so he would not anger the trial

court; and (3) mistakenly advised him that his maximum exposure was 12 years rather

than 18 years which made him reject a plea deal. The new claims merited further inquiry

on the propriety of substituting counsel for the purpose of investigating grounds for a

motion for new trial based on ineffective assistance of counsel. Defendant insists remand

once again is warranted in order for the trial court to conduct a new Marsden hearing.




                                              4
       A.     Additional Factual Background

       Despite being represented by counsel, after a jury convicted him of the above-

referenced charges, defendant filed his own motion for new trial just after his trial. In

that motion, he raised the following claims: (1) the trial court denied his 14th

Amendment rights to due process by denying his pre-trial section 995 motion on the

burglary charge; (2) whether his due process rights and right to a fair trial were violated

because of defense counsel’s unprofessional errors which included not requesting a

continuance for witnesses, not requesting a mistrial and failing to request a jury

instruction; and (3) whether the trial court committed instructional error. Defense

counsel asked the trial court to review the new trial motion. The trial court refused to

hear the motion for new trial since defendant was represented by counsel.

       In the prior appeal, we remanded to the trial court for it to adequately inquire into

the claims raised in the new trial motion filed by defendant, the relief requested by

defendant in his appeal. Our disposition provided as follows: “(1) The court shall hold a

hearing on defendant’s motion for new trial; (2) if the court finds that defendant has made

a proper showing of ineffective assistance of trial counsel, it can either grant the motion

for new trial or appoint new counsel to represent defendant and entertain a motion for a

new trial if newly appointed counsel files one; and (3) if newly appointed counsel makes

no new trial motion, if no counsel is appointed and the trial court denies the motion for

new trial, or the new trial motion filed by substitute counsel is denied, the court shall

reinstate the judgment.” We did not order the trial court to first conduct a Marsden

hearing.



                                              5
       Upon remand, the trial court noted that this court had remanded the matter to

conduct a hearing on defendant’s motion for new trial, including if he had shown

ineffective assistance of counsel. The trial court noted, “[s]o I bet taking it in sequence,

that’s the next thing we have to discuss is whether or not there is a showing of ineffective

assistance of counsel.” The trial court stated it had defendant’s new trial motion and

began with the first claim of ineffective assistance of counsel, which was the failure to

seek a continuance in order to secure witnesses for his defense.

       Defense counsel interrupted and stated, “Your Honor, what I would like, because I

do think that the motion for new trial where it discusses ineffective assistance of counsel,

I do think is exactly a Marsden hearing. So I would like the district attorney to leave the

courtroom, because I do think in discussing that, we would possibly be discussing things

that [defendant] had issues with that could - - could breach the attorney-client privilege.

And I think that she should be excluded from the courtroom.” The prosecutor waited

outside the courtroom.

       Outside the presence of the prosecutor, the trial court first stated, “We are going to

treat this, then, in the nature of the Marsden as to your being effective in assisting him.”

The trial court first asked about the failure to call witnesses. Defense counsel stated that

the defense to the burglary was that defendant lived in the apartment. Defense counsel

noted that a witness had seen defendant at the apartment that day but also had other

information that she believed would hurt his case. Defendant stated that he believed that

there were three witnesses who could testify he lived at the complex and that trial counsel

had assured him she was going to call all three witnesses. He also wanted his mother and



                                              6
sister to testify that he lived in the apartment. Defendant stated, “So by me not having

any witnesses at all, including myself, I feel like I had no defense to protect myself.” He

further stated, “[I] feel like I would have had at least a chance to get a hung jury or

something [if the witnesses were called], not a complete not guilty, on at least a couple of

the charges. [¶] And it was just like: We rest. And I was stunned, and that’s why I filed

the motion.”

       The trial court then inquired about the claim in the new trial motion regarding a

mistrial. Defense counsel knew of no grounds for a mistrial. Defendant was asked and

he stated a mistrial was required because defense counsel never subpoenaed the witnesses

and the witnesses were not cooperating. The trial court then addressed the failure to

request an instruction on trespass. Defense counsel felt that the instruction issue was

covered on the record and defendant made no other comments.

       The trial court stated, “Since we are in this environment, which we are labeling a

quasi Marsden, I am not aware of any other claims that the defendant made in his motion

about you. Are you aware of any others?” Defense counsel responded, “I don’t know,

unless he is going to argue something.”

       Defendant then stated that defense counsel advised him to waive his rights on the

prior convictions because trial judges did not like “strike” trials. He indicated he was

advised he may receive less time if he pleaded to the convictions. Defendant admitted he

knowingly waived his rights. The trial court discussed with defendant the problems with

the jury hearing about his criminal background.

       The following exchange then occurred:



                                              7
       “THE COURT: Okay. Now, since we are treating this in the nature of a Marsden,

were you seeking to have [defense counsel] replaced with a different attorney?

       THE DEFENDANT: Yes, sir. I was seeking to have a whole new trial, sir.

       THE COURT: Well, take it one step at a time. You are seeking to have [defense

counsel] replaced with another attorney; is that right?

       THE DEFENDANT: Yes, sir.”

       Thereafter, the trial court asked if there were any other claims as to defense

counsel’s representation of him. Defendant then stated that he felt that defense counsel

moved the process along too quickly. She played on her telephone during trial and did

not pay attention. He claimed that she advised him that he was facing 12 years but then

he found out the lowest amount of time was 18 years; he would have “taken the deal” if

he had known the proper time. The trial court interrupted and stated, “Well, we aren’t

here to discuss that. We are here to discuss what happened between you and [defense

counsel].”

       Defense counsel stated she felt she had sufficient time to prepare for defendant’s

trial. She had no problem communicating with defendant and he seemed to understand

throughout the trial. The trial court ruled, “[I] do recall your representation, and I think

that you did very ably represent the defendant. So at this point, in the nature of a

Marsden motion, it will be denied. And then I will ask for the DA to come back in in the

nature of a showing of ineffective assistance of counsel.”

       In open court, the trial court advised the prosecutor that they had addressed

concerns that defendant had with defense counsel and “treated it as a Marsden motion.”



                                              8
The trial court noted, “The Marsden motion was denied, and now we are back where - -

the motion for the new trial. And we are still in the process of the motion for a new

trial.”

          The parties then discussed the claims raised by defendant in the new trial motion.

The trial court did not think that a section 995 motion was a basis to grant a new trial

motion. The prosecutor stated as to ineffective assistance of counsel, that defense

counsel was extremely skilled and experienced. The trial court then stated, “[Defendant],

I am going to give you one more chance here to tell me why you think she - - we have

discussed a number of things. Is there anything left that we haven’t discussed that

indicated to you that she was ineffective in your trial?” Defendant responded, “Just the

witnesses, sir. That’s it. I would love to have had the witnesses. That’s it. That’s the

most important thing to me, the witnesses, at least try.”

          The trial court noted that defense counsel had already explained that one of the

witnesses would have been detrimental to his case. Defendant then stated that it was

more than one witness that defense counsel had advised him about that she did not call at

trial. Defense counsel then recalled that there were two other potential witnesses that she

had discussed with defendant. One of the witnesses had been “extremely unhelpful” and

two other witnesses had refused to make statements and refused to come to court. They

threatened to call the police several times. Further, any testimony by his sister or mother

would have been unhelpful.




                                               9
       The trial court ruled, “At this point, the - - I don’t believe a proper showing has

been made of ineffective assistance of counsel. And I am going to deny the motion for a

new trial.”

       B.     New Trial Motion

       “‘Where a reviewing court reverses a judgment with directions . . . the trial court is

bound by the directions given and has no authority to retry any other issue or to make any

other findings. Its authority is limited wholly and solely to following the directions of the

reviewing court.’ [Citations.]” (People v. Dutra (2006) 145 Cal.App.4th 1359, 1367.)

“In an appeal following a limited remand, the scope of the issues before the court is

determined by the remand order. [Citations.]” (People v. Murphy (2001) 88 Cal.App.4th

392, 396-397.)

       “‘“The lower court cannot reopen the case on the facts, allow the filing of

amended or supplemental pleadings, nor retry the case, and if it should do so, the

judgment rendered thereon would be void.”’ [Citations.]” (Griset v. Fair Political

Practices Com. (2001) 25 Cal.4th 688, 701; see also Butler v. Superior Court (2002) 104

Cal.App.4th 979, 982 [“Any material variance from the directions is unauthorized and

void. [Citations.]”].)

       Here, our remand order was very specific. This case presented a unique set of

circumstances in that defendant had already filed a written motion for new trial and

defense counsel had acquiesced in the filing of the motion. The trial court refused to hear

the motion for new trial because defendant was represented by counsel. Our remand

order made it clear that the trial court was to first consider the new trial motion filed by



                                              10
defendant and determine whether he had made a proper showing of ineffective assistance

of counsel based on the claims in the motion. The trial court needed to inquire of

defendant the facts underlying the claims. Only after allowing defendant to explain his

claims in his motion for new trial, could the trial court grant or deny the new trial motion

filed by defendant. We further authorized the trial court to appoint new counsel if it felt

it was necessary to further explore the claims of inadequate representation but only after

an appropriate showing of ineffective assistance of counsel was shown by defendant.

       Rather than proceed in this manner, the trial court was advised by defense counsel

that a Marsden hearing had to be conducted. This hearing was unnecessary.3 Citing to

People v. Braxton (2004) 34 Cal.4th 798, 819, we provided to the trial court in our

opinion that an appropriate remedy for the failure to consider a defendant’s motion for

new trial was remand for a hearing on the motion. (Id. a pp. 819-820.) In Braxton, the

court found, “[W]hen, as here, a trial court has refused to hear a defendant’s new trial

motion, and the appellate record is insufficient to permit a reviewing court to determine

as a matter of law whether the proposed motion was meritorious, the reviewing court may

remand the matter to the trial court for a belated hearing of the new trial motion, . . .” (Id.

at p. 819.) In remanding the case, we did not order that a Marsden hearing be conducted;

we ordered a hearing on defendant’s new trial motion. Accordingly, the holding of a

Marsden hearing was unauthorized. (Butler v. Superior Court, supra, 104 Cal.App.4th at

p. 982.)

       3      We note that defendant did not make a new request for a Marsden hearing
upon remand. Although he later agreed with the trial court that he was seeking substitute
counsel, he admitted his main purpose was to gain a new trial.


                                              11
       Defendant contends here that the trial court erred by failing to inquire into

additional claims of incompetent representation raised by defendant during the Marsden

hearing and remand is required to further explore those issues as grounds to substitute

counsel to file a new trial motion. As we have noted, the remand was specific that the

trial court was to consider the new trial motion filed by defendant; we did not authorize

amendment to the motion to raise additional claims. If such practice were to be allowed,

no judgment would be final as a defendant could raise new issues upon remand of a case

and this would violate the above principles regarding remand of cases. Moreover, it was

clear defendant was aware of these claims when he filed his written motion for new trial

but failed to include them in the motion. The trial court had no duty to inquire into new

issues raised during a Marsden hearing or in considering the new trial motion that was

not ordered upon remand of the case.

       Defendant relies upon People v. Reed (2010) 183 Cal.App.4th 1137, 1146 in

support of his claim that the trial court was required to conduct a Marsden hearing to

determine all of defendant’s reasons for ineffective representation upon remand, not just

those set forth in his written new trial motion. Here, defendant filed a new trial motion

setting forth three specific reasons for claiming he was denied ineffective representation.

In Reed, the defendant only requested to file a motion for new trial based on a general

claim of incompetence; no specific instances were provided. Remand for a full Marsden

hearing was ordered by the appellate court. (People v. Reed, supra, 183 Cal.App.4th at

pp. 1141-1143.)




                                             12
       In this case, when defendant tried to file his new trial motion right after he was

convicted, the trial court refused to hear the motion because defendant was represented

by counsel. On appeal, we remanded the case in order for the trial court to hear the new

trial motion that defendant had filed. “[O]nce the court knows the facts underlying

defendant’s claim, it can intelligently determine whether it can fairly rule on the new trial

motion, or whether it should appoint new counsel to more fully develop the claim of

inadequate representation.” (People v. Gay (1990) 221 Cal.App.3d 1065, 1068-1069.)

Upon remand, the trial court appropriately inquired into the issues that defendant had

raised in the new trial motion and denied the motion after a full hearing. This was the

appropriate procedure upon remand. We cannot find error in the trial court refusing to

consider new claims upon remand that were raised during a Marsden hearing that the trial

court was not required to conduct.4

       We also note that even if we could consider that upon remand, a Marsden hearing

was appropriate so that defendant could raise these new claims, we would conclude

remand for another Marsden hearing is not an appropriate remedy. Ineffective assistance

of counsel is not a statutory ground for granting a new trial, but “in appropriate

circumstances justice will be expedited by avoiding appellate review, or habeas corpus

proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court



       4       Defendant has briefly argued that his due process rights were violated by
the failure to substitute counsel to raise his new claims. However, as noted, no Marsden
hearing was required because the trial court was ordered to consider defendant’s new trial
motion upon remand. Further, as will be discussed post, defendant has an adequate
remedy in that he can file a petition for writ of habeas corpus raising these claims.


                                             13
as the basis of a motion for new trial. If the court is able to determine the effectiveness

issue on such motion, it should do so.” (People v. Fosselman (1983) 33 Cal.3d 572, 582-

583.) The new claims raised by defendant (which are all out-of-court ineffective

assistance of counsel claims) would certainly not be expedited by this court once again

remanding this case to the trial court and ordering the trial court to conduct a Marsden

hearing. If counsel was appointed, additional time would certainly be needed to file a

new motion and seek a ruling on the motion.

       In People v. Cornwell (2005) 37 Cal.4th 50, disapproved of on other grounds in

People v. Doolin (2009) 45 Cal.4th 390, the court concluded that the trial court did not

error by refusing to consider ineffective assistance of counsel claims raised in a new trial

motion as the claims were not apparent from the record or courtroom observation. The

Supreme Court stated, “It is evident in the present case that, after lengthy deliberation,

the trial court concluded justice would not be expedited by entertaining defendant’s

[ineffective assistance of counsel] claim in a motion for new trial. The basis for this

conclusion is readily apparent; the matter would have been delayed for at least six months

while substitute counsel examined trial counsel’s case records and performed additional

investigation concerning witnesses who did not appear at trial and evidence that was not

in the record, in order to decide whether to make a motion for new trial. This was not a

case in which a motion readily could be resolved because of the circumstance that the

trial judge was ‘particularly well suited to observe courtroom performance and to rule on

the adequacy of counsel. . . .” [Citation.] Rather, in the present case the claim of

ineffective assistance of counsel at the guilt phase of trial rested primarily upon matters



                                             14
other than what the trial court could have observed during trial, and the court acted within

its discretion in concluding the claim should be litigated in a habeas corpus proceeding.”

(Id. at p. 101.) Defendant here can file a habeas petition raising these claims. (See

People v. Carrasco (2014) 59 Cal.4th 924, 980-981 [claims that could have been raised

on appeal but were not does not bar an ineffective assistance of counsel claim on habeas

corpus].) This remedy is more appropriate than remand.

       Although defendant has not claimed that the trial court improperly ruled on his

written motion for new trial, we briefly address the ruling. We review an order denying a

motion for new trial for abuse of discretion. (See People v. Turner (1994) 8 Cal.4th 137,

212 [““‘The determination of a motion for a new trial rests so completely within the

court’s discretion that its action will not be disturbed unless a manifest and unmistakable

abuse of discretion clearly appears.”’”].) Because the new trial motion was partially

based on ineffective assistance of counsel, the applicable standard is whether defendant

“demonstrate[d] (1) counsel’s performance was deficient in that it fell below an objective

standard of reasonableness under prevailing professional norms, and (2) counsel’s

deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’

that, but for counsel's failings, defendant would have obtained a more favorable result.

[Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)

       The trial court did not abuse its discretion by denying defendant’s motion for a

new trial. Defense counsel adequately explained the reasons for not calling witnesses, for

not seeking a mistrial, and discussed the instructional issue. All the decisions were




                                             15
reasonable tactical decisions that should not be second guessed by the trial court or this

court.

         Based on the foregoing, the trial court properly denied defendant’s motion for new

trial.

                                             IV

                                       DISPOSITION

         The judgment is affirmed.

         NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                RICHLI
                                                                                Acting P. J.

We concur:


KING
                            J.


MILLER
                            J.




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