Filed 7/2/15 P. v. Armstrong CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062617

v.                                                                       (Super.Ct.No. FVI1203363)

IRAN KAWHAN ARMSTRONG,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed.

         Eric Cioffi, under appointment by the Court of Appeal, and Iran Kawhan

Armstrong, in pro. per., for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         A jury found defendant and appellant Iran Kawhan Armstrong guilty of possession

of a controlled substance for sale (Health & Saf. Code, § 11378, count 1) and offering to

sell or transporting a controlled substance (Health & Saf. Code, § 11379, subd. (a), count



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2).1 At a bifurcated hearing, defendant admitted that he had two prior strike convictions

(Pen. Code, §§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i))2 and that he had served four

prior prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced defendant to

three years on count 1, doubled pursuant to the prior strikes. On count 2, the court

imposed a four-year term, but stayed it pursuant to section 654. The court imposed one-

year terms on each of the prior prison enhancements, but stayed those terms. Defendant’s

total commitment was six years in state prison.

         In his first appeal, defendant contended that: (1) the court failed to properly

instruct the jury that his unrecorded out-of-court statements should have been viewed

with caution; and (2) the trial court erroneously denied his Marsden3 motion without a

hearing. This court reversed the judgment with directions for the trial court to conduct a

Marsden hearing. If the court determined that good cause for appointment of new

counsel had been shown, it was to appoint new counsel and set the case for retrial. If the

court determined that good cause had not been shown, it was to reinstate the judgment.

The trial court held a Marsden hearing on December 19, 2014. It denied the motion and

reinstated the judgment.




        The procedural and factual backgrounds are taken from this court’s opinion in
         1
defendant’s first appeal, People v. Armstrong (Aug. 14, 2014, E058473 [nonpub. opn.]).

         2   All further statutory references will be to the Penal Code, unless otherwise
noted.

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


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          Defendant filed a timely notice appealing the denial of the Marsden motion. We

affirm.

                                    FACTUAL BACKGROUND

          On December 24, 2012, at approximately 7:00 p.m., Antonia Carmona was

waiting for her grandmother to pick her up at a bus stop. Defendant approached her and

asked if he could use her phone. Carmona said her phone did not work, and she

proceeded to walk to a nearby store to wait for her grandmother there. Defendant

followed her and again asked to use her phone. Carmona refused again. Defendant

asked her how old she was, and she said, “Old enough.” He said he was old enough to be

her father or grandfather. Defendant then pulled a baggie “with white stuff in it” out of

his pocket and asked if she would be interested in buying it. Defendant said, “Would you

like to buy some of this s---?” Carmona declined. As defendant was putting the baggie

back in his pocket, he said, “I got that good stuff. It’s coke.” Carmona said, “No, thank

you,” and walked across the street to another store. She then called 911.

          Officer William Underhill responded to the call that “a Black male adult was

attempting to sell someone drugs.” The officer drove to the area where the two stores

were located. He noticed defendant, who matched the description of the suspect, walking

in between two pillars near the stores. As Officer Underhill was passing by, he noticed

that defendant tried to hide himself behind a pillar; then defendant poked his head around

the corner, looking at him. Officer Underhill made a U-turn, got out of his patrol car, and

approached defendant. Officer Underhill looked around the area and found a small



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plastic bag containing a white crystalline substance and a glass pipe in a planter that was

within arm’s reach of defendant. The glass pipe was one commonly used for smoking

methamphetamine. Officer Underhill conducted a field test of the substance, and it tested

positive for methamphetamine. The white substance was later tested at the sheriff’s

department crime lab and was confirmed to be methamphetamine. The substance

weighed .51 grams.

                                        DISCUSSION

       Defendant appealed and, upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case and one potential arguable issue: whether the trial court erred in denying

defendant’s Marsden motion. Counsel has also requested this court to undertake a review

of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, which

he has done. He filed a handwritten brief in which he proclaims his innocence. He

claims that he was “rudely arrested” on Christmas Eve, that he asked the officer to “go

get the witness so she [could] see [he was not] the person,” and that the officer “failed to

investigate where [he] had just came [sic] from.” Defendant also claims that his defense

counsel failed to investigate “the way [defendant] explained to him.” He then contends

that his defense counsel did not defend him to the best of his ability or he would have

been found not guilty of the charges.



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       Defendant appears to be claiming that his trial counsel’s performance was

deficient because he was found guilty. We note that defendant raised essentially the

same issues at the Marsden hearing. He addressed the court as follows: “I feel like if he

[defense counsel] would have investigated properly from the beginning, that he would

have found out that it was someone else [that] talked to that lady after I had talked to her,

you know, because I had words with the lady. And they didn’t show the witness until

trial, you know. [¶] . . . [¶] And if the officer from the very beginning would have

brought her to me, you know, right when he was questioning me about where the drugs

out [sic], then he would have seen that I wasn’t the person.” Defense counsel explained

what he did to investigate the case and also reminded the court that a witness testified at

trial and identified defendant in court as the person who approached her and offered to

sell her drugs. After hearing testimony from both defendant and defense counsel, the

court addressed defendant and said it understood his dissatisfaction with what happened,

but that the result of the trial had nothing to do with the quality of representation he had.

The court then denied the Marsden motion.

       “A trial court should grant a defendant’s Marsden motion only when the defendant

has made ‘a substantial showing that failure to order substitution is likely to result in

constitutionally inadequate representation’ [citation], or stated slightly differently, ‘if the

record shows that the first appointed attorney is not providing adequate representation or

that the defendant and the attorney have become embroiled in such an irreconcilable

conflict that ineffective representation is likely to result’ [citation].” (People v. Hines



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(1997) 15 Cal.4th 997, 1025-1026.) Denials of Marsden motions are reviewed under an

abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)

       We conclude that the trial court did not abuse its discretion when it denied

defendant’s Marsden motion. There is no indication on the record that the defense

counsel provided inadequate representation or investigation, since he went to the scene to

investigate, and he argued at trial that defendant did not possess drugs for sale and that

the witness was mistaken as to defendant’s identity.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                RAMIREZ
                                                                                         P. J.
We concur:


HOLLENHORST
                           J.


CODRINGTON
                           J.




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