Filed 5/6/15 P. v. Hemphill CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040140
                                                                    (Monterey County
          Plaintiff and Respondent,                                  Super. Ct. No. SS091035A)

          v.

CURTIS ALLEN HEMPHILL,

          Defendant and Appellant.


          Defendant Curtis Allen Hemphill is an inmate at Salinas Valley State Prison. In
November 2007, his cellmate, Louis Singleton, was found lying prone on the cell floor
that he shared with defendant. Singleton was pronounced dead and an autopsy showed
strangulation as the cause. Following a jury trial, defendant was convicted of voluntary
manslaughter (Pen. Code, § 192, subd. (a))1 and was sentenced to a term of 33 years in
prison.
          On appeal, his counsel has filed an opening brief in which no issues are raised and
asks this court for an independent review of the record as required by People v. Wende
(1979) 25 Cal.3d 436. Counsel has declared defendant was notified an independent
review under Wende was being requested. We advised defendant of his right to submit
written argument on his own behalf within 30 days. Defendant has submitted a letter
brief requesting appointment of counsel and raising numerous issues.


          1
              Further unspecified statutory references are to the Penal Code.
       Pursuant to Wende, we have reviewed the entire record and have concluded that
there are no arguable issues. We will provide “a brief description of the facts and
procedural history of the case, the crimes of which defendant was convicted, and the
punishment imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 110.) Pursuant to Kelly,
we will consider defendant’s letter brief and will explain why we reject his contentions.
(Id. at p. 113.)
                      FACTUAL AND PROCEDURAL BACKGROUND
       Procedural History
       On March 26, 2009, the Monterey County district attorney’s office filed a
complaint charging defendant with first degree murder (§ 187, subd. (a)). It was also
alleged that defendant had a prior serious or violent felony conviction under section
1170.12, subdivision (c)(1).
       Defendant’s trial counsel filed a motion to exclude evidence of uncharged bad acts
under Evidence Code sections 1101 and 352. He also filed a motion to bifurcate the trial
of the sentencing enhancement from the substantive charge and a motion to strike all of
defendant’s prior convictions. Later, defendant waived his right to a jury trial on his
prior convictions.
       On September 28, 2011, the trial court held a hearing on defendant’s motion to
strike all of his prior convictions. Defendant’s counsel argued the motion should be
granted, because defendant did not validly waive his right to counsel in his prior case, the
prior court failed to provide defendant with legal representation, and that defendant’s
guilty plea was obtained through fraud or coercion. The court denied the motion.
       Trial began on February 27, 2012. The court granted defendant’s motion to
bifurcate the jury trial on his prior convictions. The court also granted defendant’s
motion in limine to prohibit the prosecution from introducing evidence of his alleged
priors. However, the prosecution would be able to use the alleged priors for
impeachment purposes if defendant testified.
                                             2
       The Prosecution’s Case
       On November 27, 2007, Samuel Barrera, a correctional officer at the Salinas
Valley State Prison, conducted a security check. Barrera observed that defendant and his
cellmate, Singleton, were present in their cell that night. The men were locked into their
room at approximately 10:15 p.m. The next morning, Barrera discovered Singleton lying
on the cell floor. Defendant was standing in the back of the cell and was escorted out by
another correctional officer.
       Singleton was not breathing and was unresponsive. Marquita Alton, a registered
nurse, intervened and began administering medical care to Singleton. Alton assessed that
Singleton did not have a pulse, but his body was still warm. Singleton was pronounced
dead that morning at 6:02 a.m.
       Correctional officer Manual Mendoza photographed defendant that morning.
Primarily, Mendoza did not see many visible injuries on defendant. However, he did
observe and photograph a “redness” or bruising on defendant’s inner left bicep.
Defendant also had a scratch on his left armpit area.
       Correctional officer Christopher Wilson was present while Singleton was being
photographed. Photographs showed an injury to the skin on the inside of Singleton’s
right kneecap and scuff marks on the top of his toes on his left foot.
       Dr. John Hain, a forensic pathologist contracted by Monterey County, performed
an autopsy on Singleton. Hain determined Singleton died from asphyxia due to
strangulation, and the manner of death was homicide. Hain explained that it takes a
minimum of three to four minutes to strangle someone to death. During that time, the
victim would likely be conscious for a minimum of 10 seconds. Hain opined that the
injuries to Singleton’s knees could be consistent with him being on his knees at the time
he was strangled. Hain believed Singleton’s injuries were also consistent with being
pushed against an arm or another object.


                                             3
       The Defense Case
       Defendant testified on his own behalf. He had been in custody before at the
Riverside County Jail, where he developed a fear for his own personal safety. Defendant
said a correctional officer at the jail told him he would not need to worry about going to
trial, because he would be dead before then. That same night, a group of inmates brutally
beat the man that was supposed to be defendant’s cellmate. Defendant said he and his
potential cellmate were the only two African American men at the jail at the time. Later,
one of defendant’s cellmates hit him in the eye while he was incarcerated at the county
jail. This caused defendant to suffer from light sensitivity, migraines, and blindness in
that eye.
       Defendant had been assaulted approximately six other times while in custody. He
recounted several of the traumatic events during the trial. Defendant recalled an incident
at the California Correctional Institute in Tehachapi where he was assaulted by his
cellmate. He also recalled incidents that took place in another facility in Lancaster.
Defendant believed some of these assaults were set up by the prison guards.
       Defendant testified that his experiences in prison made him fear for his life. He
had lasting injuries from the attacks.
       Defendant first met Singleton when he was in custody in Tehachapi in 2005. At
that time, Singleton had never threatened him specifically. However, Singleton had said
he was going to start a race war, which would have involved defendant. Defendant knew
of Singleton’s prior history of violence.
       Defendant said Singleton threatened him when they first became cellmates.
Defendant convinced Singleton not to attack him. However, defendant believed it was
only a matter of time before Singleton would become violent. At one point, defendant
had written to his brother, expressing the belief that he was going to die.
       The night Singleton was killed, he wanted to take one of defendant’s last Top
Ramen soups. Defendant had been giving Singleton food to appease him all week.
                                              4
Defendant told him to put the soup back, and Singleton responded that he would do what
he wanted to do. Singleton came at defendant and tried to hit him. Defendant said he
was terrified, and so he just grabbed Singleton. Defendant said he felt that seconds, not
minutes, passed. He grabbed Singleton by his shirt and protected himself, trying to stop
Singleton from killing him. Defendant was not clear about what exactly transpired, just
that he and Singleton were grabbing each other. He said he was choking Singleton with
his own shirt, but he may have also been applying pressure to Singleton with his arm.
       The Verdict and Sentencing
       On March 8, 2012, the jury found defendant not guilty of first degree murder (§§
187, subd. (a), 189) and of second degree murder (§§ 187, subd. (a), 189). However, the
jury found defendant guilty of the lesser included offense of voluntary manslaughter (§
192, subd. (a)). The trial court found his prior conviction to be true.
       The following week, defendant filed a Romero2 motion requesting the court
dismiss his prior convictions under section 1385, which the People opposed.
       On May 15, 2012, defendant filed a motion for a new trial, arguing his trial
counsel had rendered ineffective assistance. The court treated the new trial motion as
both a new trial motion and a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118,
because defendant had requested appointment of substitute counsel. After considering
the documents submitted by defendant and the argument provided by defendant and his
counsel, the trial court denied the motion for a new trial and the request for appointment
of counsel.
       That same day, the trial court sentenced defendant to an upper term of 11 years in
prison, tripled pursuant to section 1170.12, subdivision (c)(2), for a total term of 33 years,
to be served consecutive to his current sentence. Defendant was not given credits,
because he was currently serving a prison sentence. The trial court ordered defendant to

       2
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

                                              5
pay a $4,800 restitution fund fine and a matching parole revocation fine. He was also
ordered to pay $70 in court assessments. The court specified that restitution to the
victim’s family was to be determined.
                                        DISCUSSION
       We first address the points raised in defendant’s supplemental letter brief.
       Preliminarily, defendant claims that his appellate counsel misled him and rendered
ineffective assistance of counsel. Therefore, he requests appointment of substitute
appellate counsel to assist him in the preparation of his opening brief. However, his
claim of ineffective assistance of appellate counsel references matters and includes
documents outside the record on appeal. Therefore, it is not properly raised here and
should instead be raised in a petition for writ of habeas corpus. (People v. Salcido (2008)
44 Cal.4th 93, 172.)
       Furthermore, defendant’s appellate counsel filed a Wende brief, declaring that she
reviewed the record and found no arguable appellate issues. Defendant claims, in
essence, that appellate counsel failed to pursue the arguments he believes she should have
pursued. This is not enough to warrant appointment of new appellate counsel.3
“Although a defense attorney has a duty to advance all colorable claims and defenses, the
canons or professional ethics impose limits on permissible advocacy. It is the obligation
of any lawyer--whether privately retained or publicly appointed--not to clot the courts
with frivolous motions or appeals. [A defendant] has no legitimate complaint that his
lawyer refused to do so.” (Polk County v. Dodson (1981) 454 U.S. 312, 323, fn.
omitted.)


       3
         Defendant attaches, as an exhibit to his supplemental letter brief, a letter from his
trial counsel declaring he sent defendant’s entire case file to appellate counsel. However,
based on this letter, we cannot determine if defendant’s appellate counsel made false
representations to defendant that she did not possess the file, or that she failed to conduct
the research necessary in order to determine if there were any arguable issues on appeal.

                                              6
       Next, defendant argues his prior conviction must be stricken, because he was not
properly informed of his constitutional rights. (People v. Coffey (1967) 67 Cal.2d 204,
215; People v. Sumstine (1984) 36 Cal.3d 909.) He also argues his prior conviction was
made as a result of coercion and duress, and that the Faretta4 waiver he gave in his prior
case was not knowing and intelligent. Defendant raised these arguments below in his
motion to strike his prior conviction. The court rejected his claims and denied the
motion, a decision we must uphold if it is supported by substantial evidence. (People v.
Pride (1992) 3 Cal.4th 195, 256.) Based on the record, it appears there was substantial
evidence that defendant was properly informed of his constitutional rights during the
proceedings involving his prior conviction. During the prior court hearings, the court
advised defendant multiple times of his right to counsel and defendant repeatedly asserted
he wished to proceed in propria persona. We must therefore uphold the trial court’s
decision denying the motion to strike.
       Second, defendant argues his trial counsel rendered ineffective assistance. Like
his claim that his appellate counsel rendered ineffective assistance, this argument relies
on matters outside the appellate record. Therefore, it too should be raised in a petition for
writ of habeas corpus, not on appeal. (People v. Salcido, supra, 44 Cal.4th at p. 172.)
       Third, defendant’s claim that his restitution fine should be reversed due to his
indigent status is forfeited for his failure to object at the sentencing hearing when the fine
was imposed. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1207.)
       Next, we find no merit in defendant’s claim that his Marsden motions were
improperly denied.5 “The decision to substitute counsel is within the discretion of the
trial court; this court will not find an abuse of discretion unless the trial court’s failure to

       4
        Faretta v. California (1975) 422 U.S. 806.
       5
        In his letter brief, defendant does not specify which Marsden motion he believes
was erroneously denied. Regardless, we have reviewed the transcripts of the Marsden
hearings that took place on February 22, 2012 and on May 15, 2012.

                                                7
substitute counsel would ‘ “ ‘substantially impair’ the defendant’s right to effective
assistance of counsel.” ’ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) We find the
trial court made proper inquiries and did not abuse its discretion when it declined to
substitute counsel.
       Lastly, defendant claims the court erred in denying his motion for a new trial due
to the ineffective assistance of his trial counsel. Section 1181 sets forth nine grounds for
granting a new trial motion. Ineffective assistance of counsel is not one of them, but the
California Supreme Court in People v. Fosselman (1983) 33 Cal.3d 572, 582 held that a
claim of ineffective assistance can be asserted as a basis for a new trial. A trial court’s
ruling on a motion for new trial is reviewed for abuse of discretion. (People v. Thompson
(2010) 49 Cal.4th 79, 140.) A trial court “ ‘should consider a claim of ineffective
assistance of counsel in a motion for new trial . . .’ when the ‘ “issue of counsel’s
effectiveness can be resolved promptly at the trial level” ’ and justice will . . . thereby be
expedited.” (People v. Carrasco (2014) 59 Cal.4th 924, 981.) However, if justice cannot
readily be expedited at the trial court level, the court does not abuse its discretion in
denying the new trial motion. (Ibid.)
       Based on the record, the court did not abuse its discretion when it denied the new
trial motion. Most of defendant’s claims targeted defense counsel’s choice of tactics, not
his performance at trial, and were not the type of issue that could be promptly and
effectively resolved by the trial court.
       In addition to the arguments set forth by defendant in his letter brief, we have also
conducted an independent review of the record pursuant to Wende and Kelly. We
conclude there are no arguable issues on appeal.
                                           DISPOSITION
       The judgment is affirmed.




                                               8
                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
