Filed 10/29/13 P. v. Perez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E056405

v.                                                                       (Super.Ct.No. INF10002764)

MICHAEL PAUL PEREZ,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.

Affirmed.

         Eric Cioffi, 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, Assistant Attorney General, Theodore Cropley, and Julianne

Karr Reizen, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                              I

                                     INTRODUCTION

       Defendant Michael Perez owned a house and rented rooms to two other men.

Various amounts of methamphetamine and drug paraphernalia were found throughout

defendant‟s home during the execution of a search warrant.

       A jury convicted defendant of possession of methamphetamine for sale. (Health

& Saf. Code, § 11378.) The court suspended sentence and granted formal probation for

36 months.

       This appeal involves defendant‟s oral motions for self-representation. First,

defendant contends the trial court had a duty to conduct a full Marsden1 inquiry in

addition to a Faretta2 inquiry. Second, defendant argues that, after he withdrew his

Faretta motion, the trial court had a duty to initiate a Marsden inquiry because defendant

and defense counsel were irreconcilably in conflict with one another. Third, defendant

argues that the court erred in denying a motion to continue the trial before ruling on

defendant‟s Faretta motion. Defendant contends that his due process rights and right to

effective assistance of counsel were violated because of the trial court‟s errors. Finally,

defendant argues that he received ineffective assistance of counsel during the suppression

hearing. We reject defendant‟s contentions and affirm the trial court‟s judgment.




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

       2   Faretta v. California (1975) 422 U.S. 806.

                                              2
                                            II

                             STATEMENT OF THE FACTS

A. Pretrial Proceedings

       After the complaint was filed in December 2010, pretrial proceedings continued

until April 2012. During that time, defendant was represented by four different attorneys

and also represented himself. Defendant‟s fourth attorney was Ronny Hettena.

       On April 11, 2012, the trial court conducted a Marsden hearing during which

defendant explained his defense was that the police had lied and complained about

Hettena discussing the defense with the prosecution and how he was handling the case.

The trial court denied defendant‟s Marsden motion, ruling that defendant‟s contention

about the police lying was not confidential information.

       On April 30, 2012, during jury selection on the second day of trial, defendant

asked to “fire” Hettena. Defendant unequivocally told the court that he was not

requesting a substitution of counsel but was requesting to represent himself. Based on

defendant‟s request, the trial court conducted a Faretta inquiry. Defendant asserted he

had the ability to represent himself based on his knowledge of courtroom procedure and

his experience as a “professional insurance adjuster examiner.” Defendant indicated that

he and Hettena differed about strategy. The trial court discussed attorney-client privilege

with Hettena and defendant. The trial court denied defendant‟s Faretta motion without

prejudice. The trial court told defendant he could renew his Faretta motion in the future

if it was appropriate.



                                             3
       After the prosecutor returned to the courtroom, at defendant‟s request, Hettena

presented an oral motion to suppress evidence. The trial court denied the motion as

untimely. Defendant renewed his Faretta motion in order to request a continuance to file

a written motion to suppress evidence. Ultimately, defendant withdrew his Faretta

motion and Hettena represented defendant at trial.

B. The Trial

       To investigate methamphetamine sales by Calvin Treantafilos, one of defendant‟s

renters, the Coachella Valley Narcotics Task Force executed a search warrant for

defendant‟s Palm Springs residence. When the members of the task force entered the

residence, they contacted Namon McCloe, who also rented a room from defendant.

Because defendant‟s bedroom was locked, deputies made a forced entry.

       The search of defendant‟s bedroom located a baggie containing 1.8 grams of

methamphetamine in a dresser drawer. A deputy also found approximately 100 small

plastic baggies, 18 hypodermic needles, and a digital scale. The receipt for the scale had

defendant‟s name on it with a date of purchase three weeks before the execution of the

search warrant. Other documents in defendant‟s name were located in his bedroom.

       In the laundry room, deputies found additional baggies, a digital scale, and three

plastic baggies containing methamphetamine. The combined weight of the

methamphetamine was 14.4 grams (8.1 grams, 4.1 grams, and 2.2 grams.) The laundry

room was accessible to all the residents.

       Police detective Guillermo Fernandez testified as a drug expert that a typical

methamphetamine user uses between .1 and .2 grams of methamphetamine per single use.

                                             4
An amount purchased for personal use varies from .2 to .4 grams. A street dealer

typically may possess half an ounce—or 14.25 grams—of methamphetamine, which sells

for approximately $600. Detective Fernandez testified that it is common for a street level

dealer to have drug paraphernalia spread throughout a house. People who live together

are often jointly engaged in narcotics sales because it is difficult to hide the activity.

Detective Fernandez opined that defendant possessed methamphetamine for sale, based

on the large amount of methamphetamine, the packaging, the digital scales, as well as the

packaging materials recovered from defendant‟s bedroom.

       Outside the presence of the jury, defense counsel advised defendant not to testify

at trial. Nevertheless, defendant testified and denied knowing there was any

methamphetamine at his residence—in his bedroom, the laundry room, or other

bedrooms. The door to his bedroom was locked and required a key. Defendant denied

knowing that Treantafilos or McCloe were selling methamphetamine out of the residence.

Defendant testified he used the baggies found in his bedroom to package and resell

jewelry he buys on eBay. The scale was used to weigh the gold, silver, and gemstones.

Detective Fernandez testified on recall that he was not personally aware of any jewelry,

beads, coins, or stamps found in defendant‟s residence.

       On cross-examination, defendant admitted calling Detective Fernandez after the

search warrant was executed to say that the paraphernalia in the bedroom was

defendant‟s. Defendant denied selling methamphetamine or possessing the drugs found

in the home. On the day the search warrant was executed, however, he was buying

methamphetamine in Los Angeles. Defendant said the door to his bedroom was locked

                                               5
when he left for Los Angeles. He admitted that all three residents used the laundry

room. He was familiar with methamphetamine symptoms and he had used

methamphetamine for 20 years. He denied knowing McCloe was a methamphetamine

user, stating it was “a complete surprise.” He did not offer any proof that he had an eBay

business.

                                             III

            DEFENDANT‟S MOTIONS TO RELIEVE DEFENSE COUNSEL

       Defendant contends the trial court erred by: (1) failing to conduct a sufficient

initial Marsden hearing; (2) failing to initiate a second Marsden hearing at the

suppression hearing; and (3) refusing to continue the trial before ruling on defendant‟s

Faretta motion. We conclude the record demonstrates that the trial court did not err

because defendant expressly requested self-representation. Nor was the trial court

required to initiate a Marsden inquiry sua sponte when the record fails to support an

irreconcilable conflict existed that violated defendant‟s Sixth Amendment right to

effective assistance of counsel. Further, the court properly exercised its discretion in

denying defendant‟s renewed Faretta request when defendant also sought a continuance

and a delay in the trial.

A. First Marsden Hearing

       The duty to conduct a Marsden inquiry arises only when the defendant asserts his

counsel‟s performance has denied him his constitutional right to effective counsel.

(People v. Leonard (2000) 78 Cal.App.4th 776, 787.) The court has the discretion to

deny an untimely Marsden motion. (People v. Shoals (1992) 8 Cal.App.4th 475, 497.)

                                              6
       A defendant‟s Faretta motion for self-representation differs from a Marsden

motion for substitution of counsel, “one raising the question of defendant‟s competency

to waive his right to counsel, and the other raising the question of existing counsel‟s

competency.” (People v. Burton (1989) 48 Cal.3d 843, 855.) A request for self-

representation does not trigger a duty to conduct a Marsden inquiry or suggest

substitution of counsel as an alternative. (People v. Clark (1992) 3 Cal.4th 41, 105.)

       In Burton, the California Supreme Court found that the trial court had no duty to

conduct a Marsden inquiry when the defendant argued on appeal that the trial court failed

to conduct a Marsden inquiry after the defendant made a Faretta motion on the basis of

dissatisfaction with defense counsel: “Although defendant expressed dissatisfaction with

his attorney, he made repeated, explicit requests to represent himself and gave reasons

why he thought he would be more persuasive and effective than counsel. He never

suggested he would like a different attorney. [Citation.] Nor is it the rule that whenever

a defendant makes a motion to represent himself on the basis of dissatisfaction with

counsel, the court automatically should inquire whether he would like to make a motion

for substitution of counsel. [Citations.]” (People v. Burton, supra, 48 Cal.3d at p. 855.)

       Here, because defendant asked to fire Hettena and to represent himself, the trial

court had no duty to conduct a Marsden inquiry. Instead, the trial court properly

conducted a Faretta inquiry.

B. Second Marsden Hearing

       Additionally, the trial court had no duty to initiate a second Marsden hearing

because defendant thought Hettena should make a suppression motion. Defendant argues

                                             7
that it was apparent that Hettena and defendant had irreconcilable differences. While

fundamental decisions about the handling of a criminal case belong to the defendant,

most other decisions belong to the attorney. (People v. Frierson (1985) 39 Cal.3d 803,

813; People v. Welch (1999) 20 Cal.4th 701, 729.) Hettena had “„complete control of

defense strategies and tactics.‟” (In re Barnett (2003) 31 Cal.4th 466, 472.) “A

defendant does not have the right to present a defense of his own choosing, but merely

the right to an adequate and competent defense.” (Welch, at p. 728.) A defense attorney

is not required to make a futile or frivolous motion. (People v. Prieto (2003) 30 Cal.4th

226, 261; People v. Scheer (1998) 68 Cal.App.4th 1009, 1024.) Even if a defendant is

dissatisfied with defense counsel, “[t]he trial court is not obliged to initiate a Marsden

inquiry sua sponte.” (People v. Lara (2001) 86 Cal.App.4th 139, 150.)

       During the suppression hearing, defendant never asked for replacement counsel.

Therefore, the court had no duty to initiate a Marsden inquiry. Furthermore, the record

does not show there was an irreconcilable difference between defendant and Hettena,

causing a complete breakdown in the attorney-client relationship. (People v. Crandell

(1988) 46 Cal.3d 833, 854.) Defendant‟s chief complaint was that Hettena refused to

pursue a formal written motion to suppress evidence or challenge the search warrant.

Hettena had no duty to file a meritless motion. Defendant even acknowledged there was

little likelihood of success if a motion to suppress evidence was filed.

       None of defendant‟s additional complaints demonstrate an irreconcilable conflict

with Hettena. Defendant was not “compelled” to be represented by appointed counsel, as

he now asserts. After the court indicated it could rule on defendant‟s Faretta motion or

                                              8
defendant could withdraw it without prejudice, defendant chose to proceed and expressly

withdrew his Faretta motion. Furthermore, it was Hettena, as counsel of record, who

presented defendant‟s oral suppression motion to the court, arguing that defendant‟s

residence was a multi-occupancy dwelling. Hettena also represented to the court that, if

the court suppressed the requested evidence, the case would be easier to defend at trial

and if the court denied the motion, defendant might agree to a plea. Defendant expressly

approved of Hettena‟s argument as he articulated it to the court. The record does not

support that defense counsel improperly discussed trial strategy or revealed confidential

information.

       In its simplest formulation, the issue is that Hettena believed defendant‟s proposed

suppression motion was meritless. Hettena was counsel of record, entitled to make

tactical decisions. Hettena‟s statement that defendant should consider self-

representation—if he disagreed with defense counsel‟s decision not to file a suppression

motion—did not constitute an irreconcilable difference. Contrary to acting deficiently,

Hettena acted rationally in the tactical decisions he made as defendant‟s attorney.

       Defendant‟s argument that Hettena deprived him of the right to ask for a

continuance also lacks merit. Although Hettena declined to request a continuance,

defendant himself asked to continue the trial while representing himself. The court

properly denied defendant‟s request for a continuance, advising that the court was

prepared to grant defendant‟s Faretta motion only if he was ready to proceed to trial

without a continuance.



                                             9
       Based on these circumstances, defendant cannot show the disagreement between

him and defense counsel was of such magnitude that there was a complete breakdown in

their relationship. In summary, the record refutes defendant‟s claim that he requested a

substitution of counsel during the suppression hearing or that his relationship with

Hettena suffered from irreconcilable differences. The trial court was not required to

conduct a Marsden inquiry sua sponte during the suppression motion.

C. Faretta Motion

       Finally, the court correctly ruled on the last Faretta motion. “Faretta itself and

later cases have made clear that the right of self-representation is not absolute.

[Citation.]” (People v. Butler (2009) 47 Cal.4th 814, 824.) “When a motion for self-

representation is not made in a timely fashion prior to trial, self-representation no longer

is a matter of right but is subject to the trial court‟s discretion.” (People v. Bradford

(1997) 15 Cal.4th 1229, 1365.) The Faretta motion must be timely and not delay the

trial. Defendant has the burden of justifying any delay. (People v. Horton (1995) 11

Cal.4th 1068, 1110.)

       The factors to be considered when ruling upon a defendant‟s midtrial request for

self-representation include defendant‟s reasons for the motion, the quality of defense

counsel‟s representation, the defendant‟s proclivity to substitute counsel, the length and

stage of the proceedings, and the disruption or delay that might reasonably be expected to

follow if the motion was granted. A reviewing court defers to the trial court‟s exercise of

discretion. (People v. Bradford, supra, 15 Cal.4th at pp. 1353-1354.)



                                              10
       We conclude the trial court properly exercised its discretion by denying

defendant‟s Faretta motion and finding that defendant could represent himself only if he

was ready to proceed with the trial without a continuance. Case law confirms that a trial

court has the discretion to condition a grant of a Faretta motion on defendant‟s

agreement that there be no delay or continuance of the trial proceedings. (People v.

Jenkins (2000) 22 Cal.4th 900, 1039-1040; People v. Clark, supra, 3 Cal.4th at p. 110.)

       In People v. Valdez (2004) 32 Cal.4th 73, 102-103, the trial court denied the

defendant‟s request for self-representation made just moments before jury selection.

Defendant insisted he had a constitutional right to represent himself. The trial court

responded that it would allow the defendant to represent himself if he was prepared to

proceed with the trial without any delay or continuance. The California Supreme Court

found that the trial court “acted within its discretion in concluding that defendant could

represent himself only if he was ready to proceed to trial without delay.” (Id. at p. 103.)

       Here defendant failed to justify the significant delay in bringing his Faretta

motion in the middle of jury selection. The case had been ongoing for almost a year and

a half and the trial had already begun. The trial court was well within its discretion to

deny any request for a continuance and require that defendant be prepared to proceed

without delay. Instead of representing himself, defendant elected again to withdraw his

Faretta motion and go to trial with appointed counsel. Therefore, no violation of

defendant‟s Sixth Amendment right to effective assistance of counsel occurred.




                                             11
                                            IV

                       INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant protests he received ineffective assistance of counsel (IAC) due to

Hettena‟s mishandling of the suppression motion. We agree with respondent the record

fails to show that Hettena was ineffective. As already discussed, disagreement over

tactics does not demonstrate that defense counsel was deficient. Furthermore, the facts in

this case do not establish any prejudice.

       To establish an IAC claim, defendant must first show that counsel failed to act in a

manner to be expected of a reasonably competent attorney acting as a diligent advocate.

(Strickland v. Washington (1984) 466 U.S. 668, 687-688; see also People v. Jennings

(1991) 53 Cal.3d 334, 357.) Second, defendant must demonstrate that it is reasonably

probable a more favorable result would have been obtained in the absence of counsel‟s

failings. (Strickland, at pp. 691-694; see also People v. Duncan (1991) 53 Cal.3d 955,

966.) Counsel is presumed to have acted properly and rendered effective assistance.

(Strickland, at p. 689; see also People v. Makabali (1993) 14 Cal.App.4th 847, 853.) A

court can deny an IAC claim based solely on the lack of demonstrable prejudice without

ever reaching the issue of counsel‟s performance. (People v. Rodrigues (1994) 8 Cal.4th

1060, 1126; Strickland, at p. 697.)

       Defendant‟s IAC claim is founded on his repeated contention the trial court was

required to conduct a Marsden inquiry sua sponte because of how Hettena handled the

suppression issue. Defendant further argues that prejudice should be presumed under

these circumstances.

                                            12
       The record contradicts defendant. Hettena did not fail to investigate the matter

and he did not disclose confidential information (Evid. Code, § 952) or trial strategy. At

defendant‟s insistence and in spite of his misgivings, Hettena made an oral motion for

suppression of the evidence. Hettena did not advocate against defendant by telling the

court that he had reviewed the search warrant and believed a suppression motion to be

meritless. In any event, defendant agreed with Hettena‟s presentation of the oral

suppression motion. Defendant cites no authority that a pretrial motion to suppress

evidence is a fundamental right, to be decided by the defendant. Rather, case law

supports it is a tactical decision within the control of the defense attorney. (People v.

Scheer, supra, 68 Cal.App.4th at p. 1024.) Defendant fails to show Hettena‟s

representation fell below an objective standard of reasonableness.

       This is not the rare case in which prejudice is presumed. (United States v. Cronic

(1984) 466 U.S. 648.) Assuming defendant has proven deficient representation under the

Strickland standard, the record fails to establish prejudice. Defendant has not shown that

the belated suppression motion should have succeeded: “[t]o establish prejudice . . . the

defendant must do more than show the motion would have been meritorious. When the

alleged deficiency is the failure to make a suppression motion, the defendant must show,

in addition, the motion would have been successful. [Citation.]” (People v. Gonzalez

(1998) 64 Cal.App.4th 432, 437-438; People v. Grant (1988) 45 Cal.3d 829, 864.)

       A reviewing court will only reverse a conviction based on IAC if the record on

appeal affirmatively demonstrates counsel had no rational tactical purpose for a failure to

file a motion to suppress. (People v. Scheer, supra, 68 Cal.App.4th at p. 1024.) Here, the

                                             13
record discloses why defense counsel declined to file a written motion to suppress

evidence. Hettena believed, after reviewing the probable cause statement and the

warrant, that the search warrant was valid. He believed that filing a written motion to

suppress evidence or a motion to quash and traverse the search warrant was frivolous.

Hettena‟s explanation discloses that he had a rational tactical purpose. Defense counsel

was not deficient for declining to file a motion that he believed lacks merit.

                                             V

                                      DISPOSITION

       We reject defendant‟s claims of error involving Marsden, Faretta, and IAC. We

affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                           J.

We concur:


McKINSTER
                 Acting P. J.


RICHLI
                           J.




                                             14
