Filed 12/1/15 P. v. Lawrence CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068631
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF148218A)
                   v.

RORY ROBERT LAWRENCE,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A.
Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

*        Before Levy, Acting P.J., Peña, J. and Smith, J.
                                          -ooOoo-
       Defendant Rory Robert Lawrence was convicted by no contest plea of felony
domestic violence against his wife. On appeal, he contends the trial court erred in
denying his Marsden1 motion for substitute appointed counsel. We affirm.
                                     BACKGROUND
       On May 1, 2013, defendant was charged with corporal injury to a spouse (Pen.
Code, § 273.5, subd. (a)),2 with an allegation that he had suffered a prior conviction
within the meaning of section 273.5, subdivision (e). He pled not guilty.3
       On May 14, 2013, defendant rejected a plea offer of four years.4
       On May 15, 2013, at the preliminary hearing, defendant pled no contest and
admitted a prior conviction within the meaning of section 273.5, subdivision (e) and a
prior felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)), over the prosecutor’s objection. The trial court indicated
sentence would be no more than one year as a term of felony probation, with the granting
of a Romero5 motion to strike the prior felony conviction.6
       On May 22, 2013, defendant filed a Romero motion.7
       On June 13, 2013, after considering the probation report and the victim’s
statement, the trial court denied the Romero motion and allowed defendant to withdraw
his plea.8

1      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2      All statutory references are to the Penal Code.
3      Defendant appeared with Public Defender Lolachi.
4      Defendant appeared with Public Defender Ratliff.
5      People v. Superior Court (Romero) 13 Cal.4th 497 (Romero).
6      Defendant appeared with Public Defender Ratliff.
7      Defendant appeared with Public Defender Ratliff.
8      Defendant appeared with Public Defender Ratliff.


                                             2.
      On June 24, 2013, defendant appeared without counsel and the court appointed
another public defender. Defendant pled not guilty.9
      On August 2, 2013, defendant appeared at the readiness hearing with a fourth
public defender, Ms. Keshishian. Ms. Keshishian represented defendant for the
remainder of the proceedings.
      On August 6, 2013, defendant appeared with Ms. Keshishian for a Marsden
hearing. The trial court asked defendant to explain why Ms. Keshishian should be fired.
The following occurred:

              “THE DEFENDANT: I asked for motions to be filed on motions
      date, motions were vacated. Motions are essential for appeals and writs,
      and even of objection, when I accepted the plea of one year on a plea
      bargain and it was rejected, counsel did not object to the ruling the judge
      made; probation was granted, and there was no new evidence. She didn’t
      object, didn’t want to file no motions. And third, she has not got evidence
      that’s crucial to my case so far, that would make the case a lot different.

              “THE COURT: What evidence do you believe is out there that she’s
      failed to gather?

            “THE DEFENDANT: From Kern Mental Health, the Veteran’s
      Association and witnesses that, proof in my defense, that would prove me
      innocent.

              “THE COURT: Okay. Ms. Keshishian, would you like to respond
      to the comments that have been made so far?

             “MS. KESHISHIAN: Sure, your Honor. With regards to the police
      reports, I do not have independent recollection of providing [defendant]
      with any reports. I thought I did, but I do not know that for a fact. I have
      not, but I went over the police reports with him.

            “He also asked for a copy of the transcripts and also the 911 call. I
      went over those with him, but I have not provided copies to him.

             “With regards to the motions, [defendant], I know we talk[ed]
      several times about this, he wanted a 995 motion and Romero. I indicated

9     Defendant appeared with Public Defender Kinnison.


                                           3.
that there were, I couldn’t file a 995 motion because there was sufficient
evidence presented at the time of the preliminary hearing, and Romero is a
sentencing issue.

       “With regards to evidence, I have interviewed every witness that he
has provided me with, I have interviewed the victim in this case, I have
interviewed a person who called 911, I have photos taken from the location
where the individual contacted 911 and saw the incident. That’s it.

      “THE COURT: Did you have any other comment, [defendant]?

        “THE DEFENDANT: Yes, she has not interviewed or investigated
crucial evidence from witnesses, especially my workers at Mary K. Shell
and my case manager, witnesses that have shown that—and my daughter
that works with the mental health system, my uncle, that has seen I was
being abused. I am a physically and mentally disabled American veteran, I
was being abused. She knows this and she didn’t check evidence to prove
this, to show the court what was going on.

       “There’s a lot of stuff that was going on in my case and it’s not in
there and she is not being truthful about that and we don’t click. She wants
to go against everything I say and question it, which I told her from the
beginning, I’m going to tell you the truth, everything that’s been taking
place, what’s been happening in my life. And it wasn’t tooken [sic] into
consideration.

      “THE COURT: Ms. Keshishian, were you made aware there might
be mental health issues involved in this case?

      “MS. KESHISHIAN: I do, and I do have the records.

      “THE COURT: You have been subpoen[a]ing records on that?

      “MS. KESHISHIAN: I do.

       “THE COURT: Thank you, I think I’ve heard enough. I don’t think
there’s good cause to fire Ms. Keshishian as the attorney, so the Marsden
motion is denied.

      “THE DEFENDANT: Can I object? I have a right to appeal?

      “THE COURT: You can appeal anything. I will tell [the
prosecutor] that the matter remains as previously scheduled.…” (Italics
added.)



                                     4.
       At this point, Ms. Keshishian stated she had a doubt as to defendant’s mental
competence pursuant to section 1368, noting she had raised the issue at the previous
hearing. Defendant disputed the claim. The court suspended criminal proceedings and
appointed physicians to examine defendant.
       On September 19, 2013, the trial court stated that two of three physicians found
defendant competent to stand trial. The court also made this finding and reinstated
criminal proceedings.10
       On October 9, 2013, Ms. Keshishian subpoenaed six witnesses.
       On November 1, 2013, defendant pled no contest and admitted the prior felony
conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)). The court indicated a sentence of two years with the granting of a
Romero motion.
       On December 4, 2013, after considering the probation report and the victim’s
statement, the trial court granted the Romero motion and sentenced defendant to
two years in prison.
       On December 23, 2013, the trial court granted defendant’s request for a certificate
of probable cause on the following grounds:

              “Abuse of the judicial process[.] Original judge violated my due
       process rights and denial of my Marsden Motion and pressured into
       pleading. My constitutional rights were violated.”
                                     DISCUSSION
       Defendant argues that his claim is appealable despite his no contest plea because
the court’s statement, “You can appeal anything,” amounted to a promise that he would
have the right to appeal the denial of his Marsden motion. He asserts that he relied on the
court’s statement. The People counter that defendant forfeited this claim by entering into
a no contest plea three months after the court denied his Marsden motion. (People v.

10     Public Defender Cruz appeared for Ms. Keshishian at this hearing.


                                             5.
Lobaugh (1987) 188 Cal.App.3d 780, 786; People v. Lovings (2004) 118 Cal.App.4th
1305, 1310-1311.) Alternatively, the People argue that the contention is without merit.
We conclude that, even assuming defendant’s claim was preserved for appeal by the trial
court’s statement, the claim has no merit.
       Defendant contends that he and Ms. Keshishian “had become embroiled in such an
irreconcilable conflict that ineffective representation was likely to result.” He asserts that
the trial court’s refusal to appoint substitute counsel was reversible error. He explains
that the issue involved Ms. Keshishian’s “interviewing witnesses related to his own
physical history,” And that his argument before the trial court was “not that
[Ms. Keshishian] had done nothing, but rather that she had failed to consult with the
persons who would know about past physical abuse against him. Presumably,
[defendant’s] argument was that these people could support a claim of self-defense.”
       “When a defendant seeks to discharge his appointed counsel and substitute another
attorney, and asserts inadequate representation, the trial court must permit the defendant
to explain the basis of his contention and to relate specific instances of the attorney’s
inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly
shows that the first appointed attorney is not providing adequate representation [citation]
or that defendant and counsel have become embroiled in such an irreconcilable conflict
that ineffective representation is likely to result [citations].” (People v. Crandell (1988)
46 Cal.3d 833, 854, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th
346, 364-365.) “‘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.”’” (People v. Streeter (2012) 54
Cal.4th 205, 230.) “A Marsden motion is addressed to the discretion of the trial court,
and a defendant bears a very heavy burden to prevail on such a motion. The defendant
must show that appointed counsel is not adequately representing him, and that the
deficiency in representation is so great as to substantially impair the defendant’s right to

                                              6.
the effective assistance of counsel. [Citation.] The defendant must give specific
examples of counsel’s inadequacies, and cannot rest upon mere failure to get along with
or have confidence in counsel.” (People v. Bills (1995) 38 Cal.App.4th 953, 961.) A
defendant who does not make this showing is not entitled to substitute counsel. (People
v. Smith (1993) 6 Cal.4th 684, 696.)
       We conclude that the trial court did not abuse its discretion when it denied
defendant’s Marsden motion. When the court allowed defendant to present his concerns,
he claimed (among other things he does not raise here) that Ms. Keshishian failed to
investigate witnesses who could prove he had been abused and failed to investigate the
things that were happening in his life. He did not, however, explain how this information
would affect his case. Ms. Keshishian responded that she had in fact interviewed every
witness named by defendant and that she did possess his mental health records and was
aware the case might involve mental health issues. In light of the explanations offered by
Ms. Keshishian, the reasons stated by defendant at the Marsden hearing did not show any
inadequacy of counsel or irreconcilable differences. The court was entitled to make a
credibility determination and accept Ms. Keshishian’s explanations that she had
interviewed witnesses and investigated defendant’s mental health issues.11 (People v.
Smith, supra, 6 Cal.4th at p. 696.)
       In sum, defendant did not make “‘“a substantial showing that failure to order
substitution [was] likely to result in constitutionally inadequate representation.”’”
(People v. Streeter, supra, 54 Cal.4th at p. 230.) The trial court did not abuse its
discretion in denying defendant’s motion for substitute counsel.


11    Some of defendant’s complaints, such as those regarding his previously withdrawn
no contest plea involved a previous attorney, not Ms. Keshishian.
      We note that Ms. Keshishian’s consideration of defendant’s mental health issues
was confirmed by her statement of doubt regarding his competence to stand trial, which
defendant disputed.


                                             7.
                            DISPOSITION
The judgment is affirmed.




                                8.
