Filed 11/7/13 P. v. Mayhan 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F065200
    Plaintiff and Respondent,
                                                                              (Super. Ct. No. 07CM7436)
    v.

HAYWARD MAYHAN,                                                                          OPINION
    Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
         Joseph Shipp, 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.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Gomes, J. and Franson, J.
       Appellant Hayward Mayhan filed an appeal from an order denying his motion for
substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) following a
remand by this court. We affirm.
                       FACTS AND PROCEDURAL HISTORY1
       On October 15, 2006, while a prisoner at Corcoran, appellant thrust an inmate-
manufactured spear at two officers when they attempted to serve him dinner in his cell.2
       As a result of the incident, appellant was charged in November of 2007 with
attempted murder (Pen. Code, §§ 664/187)3, attempted murder of a public official
(§ 217.1, subd. (b)), two counts of assault with a deadly weapon by a prisoner (§ 4501),
aggravated battery by a prisoner (§ 4501.5); and custodial possession of a weapon
(§ 4502, subd. (a)).
       Prior to trial, in February of 2008, the trial court suspended criminal proceedings
and ordered appellant evaluated pursuant to section 1368. In April of 2008, the trial court
found appellant mentally competent and reinstated criminal proceedings.
       On July 21, 2008, the trial court denied appellant’s first Marsden motion, and on
November 12, 2008, denied his second Marsden motion.
       On December 2, 2008, the jury was sworn. The following day, the trial court
denied appellant’s third Marsden motion. On December 5, 2008, the jury found appellant
guilty as charged and found that the attempted murder was willful, deliberate, and
premeditated (§ 664, subds. (e), (f).) In a bifurcated proceeding, the jury found strike and
serious felony allegations true.



1     The facts are taken from the record and file and our nonpublished opinion in
People v. Mayhan (Mar. 17, 2011, F057373), of which we take judicial notice.
2      The facts are not at issue in this appeal.
3      All further statutory references are to the Penal Code unless otherwise stated.



                                              2.
       On January 5, 2009, the trial court denied appellant’s fourth Marsden motion.
That same day, the trial court appointed new counsel to investigate whether there were
grounds to file a motion for new trial. On March 4, 2009, substitute counsel informed the
trial court that she had reviewed the transcripts of trial, appellant’s previous new trial
motion, and a declaration provided by appellant and found no legal cause for a new trial.
The trial court denied the motion for new trial. On March 20, 2009, the trial court denied
appellant’s fifth Marsden motion. That same day, the trial court denied probation and
sentenced appellant to state prison for an indeterminate term of 104 years-to-life.
       Appellant filed an appeal alleging that the trial court erred when it excluded all of
his defense witnesses; declined to initiate subsequent competency proceedings; denied his
Marsden motions; and failed to give necessity defense4 and attempted voluntary
manslaughter instructions. Appellant also argued defense counsel was ineffective for
having him testify in narrative form.5 He finally argued cumulative error and various
sentencing errors.
       On March 17, 2011, this court found error occurred during the January 5, 2009,
Marsden hearings and found several sentencing errors. We conditionally reversed and
remanded the matter and ordered the trial court to conduct a Marsden hearing focused
solely on appellant’s complaints that he had mental health issues at the time of the
incident. If the trial court found that appellant had shown that a failure to replace counsel
would substantially impair his right to assistance of counsel, the trial court “shall appoint
new counsel to represent him and shall entertain such applications as newly appointed


4      Appellant admitted making the spear and trying to stab one of the two officers,
and that he did so because he was being treated inhumanely and with disrespect by the
correctional officers.
5      Appellant testified against defense counsel’s advice that he admitted making the
weapon because he wanted the jury to know what “lead up to” the incident, specifically
that he had not been fed and had been abused by the officers.



                                              3.
counsel may make.” We found further that, if newly appointed counsel makes no
motion, or any motions made are denied, or if appellant’s Marsden motion is denied, the
court shall reinstate the judgment. In the event that the trial court reinstated the
judgment, this court ordered the trial court to prepare an amended abstract of judgment
indicating a total aggregate term of confinement of 91 years to life.
       In accordance with this court’s order, the trial court conducted a Marsden hearing
on April 25, 2012. On May 18, 2012, the trial court denied appellant’s Marsden motion
and reinstated the corrected judgment. At issue in this appeal is the trial court’s denial of
appellant’s April 25, 2012, Marsden motion. We find no error and affirm.
                                       DISCUSSION
       Before we discuss the April 25, 2012, Marsden hearing at issue, we repeat what
occurred at the January 5, 2009, Marsden hearing, appellant’s fourth such motion, and
our finding on that hearing.
       January 5, 2009, Marsden hearing6
       On January 5, 2009, following conviction, defense counsel advised the trial court
that appellant wanted a new attorney to investigate a motion for new trial. Appellant
confirmed this request. The trial court determined that appellant was requesting a
Marsden hearing.
       During the subsequent closed-door hearing, appellant complained that defense
counsel had not called four witnesses “prudent” to his case; he claimed he was suffering
from “mental health issues” and “extreme duress” at the time of the incident, which was
not brought out at trial; and that he and defense counsel had communication issues and
never agreed on the “direction” of appellant’s defense. Specifically, appellant
complained at the hearing that he felt “there was no defense help in my case with the
exception of him arguing that, that of the weapon. During the time of the incident, I had
6      Taken from our previous opinion in People v. Mayhan, supra, F057373.



                                              4.
mental health issues. I was, believe if I’m not mistaken, I was Triple CMS and doing
counseling and on psychiatric-.” When the trial court responded, “So,” appellant replied,
“And none of this came up in my trial during that time and/or before and after [that] I was
under extreme duress.”
         The trial court summarized appellant’s concerns as threefold: (1) that defense
counsel did not “come up with” a defense that was satisfactory to appellant; (2) that
defense counsel failed to argue psychiatric or psychological issues in the matter; and (3)
that appellant had “communication issues” with defense counsel. The court stated, “As
far as [issues (1) and (2)], the Court actually issued a ruling concerning whether or not
some of those issues could be brought into play as whether they were relevant, deeming
that they were not relevant in the matters. [¶] … [¶] So the court only sees the
communication aspect.”
         When defense counsel was asked to respond to appellant’s allegations, he
submitted on the issues, explaining he had “been through” these issues on more than one
occasion with appellant. Defense counsel also thought the issues raised by appellant
were “unreviewable” by him because they involved a review of his own performance
during trial, creating a conflict.
         The trial court then denied appellant’s Marsden motion, explaining that appellant
had failed to reach the burden required for the court to appoint new counsel for all
purposes, but explained that it would address appellant’s request for a new trial in open
court.
         Back on the record, the trial court stated that defense counsel would not be
expected to investigate his own competency during trial with regard to appellant’s request
for new trial and asked appellant if he wished to pursue the motion on his own.
Appellant responded that he wanted another attorney to review the motion. After
explaining that a new attorney would take the lead on investigating the merits of such a
motion, the court appointed another attorney to do so.

                                              5.
       In a hearing two months later, the substitute attorney informed the trial court that
she had reviewed the transcripts of trial, the new trial motion, and a declaration provided
by appellant and found no legal cause for a new trial. However, neither the new trial
motion nor Mayhan’s declaration were part of the record.
       Our review of the January 5, 2009, Marsden hearing7
       During the January 5, 2009, Marsden hearing, defense counsel, responding to
appellant’s assertion that defense counsel had failed to pursue “mental health issues”
appellant had been suffering from at the time of the offenses, said that they had “been
through this on more than one occasion.” The trial court also indicated it had considered
appellant’s mental health issues before. On appeal, appellant claimed that, in both the
pretrial Marsden hearings and the competency proceedings, the focus of the trial court
was on current trial competency and not on defenses based on mental health issues at the
time of the offenses. As argued by appellant, his post trial complaint about failure to
pursue any mental health defense raised new questions about defense counsel’s
performance. Appellant did note that his mental health background was briefly discussed
during the November 12, 2008, Marsden hearing, when he complained that counsel did
not respond to his request to have his “C File” and “114A file” (which appellant
described as his “mental health folder”) copied and admitted into evidence. Further
discussion with appellant revealed that he did not want to admit the files into evidence
but rather have defense counsel review those files in order to explain what led up to the
incident that occurred. Defense counsel stated that he had “several volumes of this case”
and had spent “probably a hundred plus hours in reviewing it,” although he did not
specify whether the mental health file appellant mentioned was included in that review.
       Respondent asserted contrarily that appellant’s complaint at the January 5, 2009,
Marsden hearing that he had mental health issues at the time of the incident had to be
7      Taken from our previous opinion in People v. Mayhan, supra, F057373.



                                             6.
viewed in the context of all of the proceedings and appellant’s constant insistence that
defense counsel failed to present a defense that his actions were the result of “extreme
duress.” As argued by respondent, appellant’s attempt to assert the defense of duress,
which the trial court found unavailable and which was discussed on numerous occasions
throughout the course of the trial, included consideration of the “mental health issues” of
which appellant spoke on January 5, 2009. Thus, respondent argued, those issues had
been considered before.
       We found nothing in the record to show that the trial court ever, either at the
January 5th hearing or at any time before, considered or requested defense counsel
specifically respond to appellant’s assertion that defense counsel failed to pursue mental
health issues as a defense. Although the trial court, in response to appellant’s complaint
at the January 5th hearing, stated that it had already ruled on that issue, it was not clear
from the record whether the trial court was referring to appellant’s assertions, to its
earlier ruling, or if it mistakenly conflated appellant’s mental health issues with the
duress defense it had previously ruled on. In any event, we found defense counsel was
never asked to respond to this particular concern.
       Marsden requires that the trial court make a record sufficient to show the nature of
the defendant’s grievances and the court’s responses to them. (People v. Mendez (2008)
161 Cal.App.4th 1362, 1368.) This, we found, the trial court failed to do.
       April 25, 2012, Marsden hearing
       At the April 25, 2012, Marsden hearing, the trial court began by stating that, as
instructed by this court, the hearing would focus “only on appellant’s complaints that he
had mental health issues at the time of the incident” as alleged during the January 5, 2009
Marsden hearing.
       Appellant began by testifying that he had raised his mental health issues at the
time of the incident many times to defense counsel. Appellant recounted his status in the
mental health treatment facility in prison and stated that he informed defense counsel that

                                              7.
he wanted him to bring appellant’s “C-file” and mental health file to court to be used as a
“defens[e] measure.” But appellant was frustrated that defense counsel failed to do so.
According to appellant, he was on medication in 2006 when the crimes occurred and he
believed that should affect his defense. Appellant explained his mental health history to
the court prior to the crimes and explained that, at the time of the crimes, he was
“classified as mental health, and the status was Triple CMS, and … was seeing clinicians,
and the head chief, head psychs, and all that and … was on psychotropic medication[.]”
Appellant claimed he had been on medication from “April 15, 2005 until 2008 or 2007;
2008, or something like that. 2006.” Appellant explained that when he first was
medicated, at Pelican Bay, he felt the effects for “maybe a week.”
       The trial court then asked defense counsel about whether he had discussed
appellant’s mental health and considered it as a possible defense. Defense counsel
explained that, prior to the presentation of the defense case, the trial court had denied the
defense request to present witnesses on a defense of necessity or duress. As such,
defense counsel explained that the two remaining options for appellant related to his
mental health history were sections 1368 (competency) and 1026 (insanity) defenses.
Defense counsel did not believe a section 1368 defense was appropriate because
appellant could comprehend the actions taken against him and could communicate with
counsel. In fact, according to defense counsel, appellant was able to articulate his theory
of the defense “extremely well, and was very adamant about it,” despite the fact that
defense counsel could not find supporting evidence for it. According to defense counsel,
although he and appellant disagreed “somewhat” on the issue, defense counsel never
believed that appellant “was unable to assist counsel or suffered from a mental defect that
would prevent him from understanding the complications and the consequences of his
particular situation to the point of arising to a [section] 1368 proceeding at that time.”
       As for an insanity defense pursuant to section 1026, defense counsel stated that he
did discuss the issue with appellant, but that appellant did not wish to enter an insanity

                                              8.
defense. Instead, appellant’s position was always that he was forced to attack the officers
based on his belief of duress or necessity. Defense counsel, who stated he had vast
experience with patients on psychotropic medications, explained that “[a]t no time did
[appellant] present to me to be someone that was so medicated that he was out of it.”
Defense counsel noted this was evidenced by the fact that appellant had planned the
attack on the officers for some time based on his feeling of how the officers were treating
him.
       The trial court stated that it did not believe this court was looking at a section 1368
defense, but was focused more on counsel’s consideration of a section 1026 defense.
Defense counsel again confirmed that he had considered and discussed an insanity
defense with appellant, but elected not to go forward with it. Defense counsel reiterated:

       “I believe it was discussed with him early on. But, again, it was not his
       position that he didn’t understand what was going on; [instead] that his
       actions were deliberate in response to the provocation and threats and
       duress that he felt at the time.”
       In response to the trial court’s question whether there had been a discussion as to
the medication appellant was taking or his claim that he was a “mental health designee,”
defense counsel acknowledged that appellant was “designated as Triple CMS at the
time,” which was always a “red flag,” and he had discussed those issues with appellant.
In all the times defense counsel spoke to appellant, although at certain times he was
taking some medication, defense counsel did not believe that appellant’s thoughts or his
ability to cooperate with defense counsel or reasonably move forward were ever clouded
by medication, “nor did it raise an issue in regards to a 1026 insanity defense at the time
of the defense.”8


8      While the reporter’s transcript indicates that defense counsel said, “the defense,”
given the context of the statement, it is likely a typographical error and defense counsel
actually said, “the offense.”



                                             9.
       The trial court then asked defense counsel that, if there had been some issue that
appellant was unable to comprehend at the time of the incident, did defense counsel know
“how to go about asking the Court for doctors…” Defense counsel assured the trial court
that he was “well versed” on the issues of whether a section 1026 or 1368 proceeding was
appropriate or whether to request an “outside expert pursuant to [Evidence Code section]
730,” and that he had had significant contact with doctors at the time. Defense counsel
spoke with Dr. Estner9 “informally” about appellant’s case, primarily in regards to
appellant’s fixation with particular issues, such as the issues of duress and necessity.
       The trial court then asked appellant for comment. Appellant maintained that
“none of these issues” were ever addressed by defense counsel from the time he was first
assigned to the case up until the close of trial. Appellant claimed he only discussed the
issue in the context of speaking to a “female psychiatric specialist” who asked him if he
could “co-exist” with defense counsel. But, according to appellant, she did not ask how
he had felt at the time of the incident or what medication he was on at the time.
       When asked by the trial court if he had told “them” how he “felt” appellant said,
“Yes. On numerous occasions, or I thought I did. Maybe I was impaired at the time .…”
When asked how he felt today, appellant stated that, although he had been shot in the
head, over the years he had managed “to deal with it,” but for the most part he felt
competent enough to understand what was going on. When asked whether he was taking
the same type of medication currently, appellant stated, “No. I try to deal with it myself.”
       Appellant explained again that when he was in Pelican Bay, “they shot me up, and
this went on for days.” When asked by the trial court if this was before the trial,
appellant stated that it was “before the incident and, you know, it led up to that.”
Appellant stated that he was taking psychotropic medications “on and off until 2008.”
According to appellant, he tried to tell defense counsel that he was on medication and
9      Dr. Estner had done a psychiatric report on appellant dated October 1, 2007.



                                             10.
seeing clinicians at the time of the incident. Appellant testified that he also told defense
counsel that he should be reviewing his “C-file” and “mental health file,” and “these are
loopholes that you need to … check into … for me to have the best defense possible,” but
that defense counsel ignored his request. Appellant claimed he did this at each meeting
he had with defense counsel.
       When asked again by the trial court whether appellant had discussed the various
possible defenses with defense counsel, appellant stated he thought he did, “unless I was
somewhere else. And if I was somewhere else, then I was mentally impaired then.”
Appellant again reiterated his belief that, if he was on medication when these incidents
occurred, defense counsel should have addressed that. Appellant stated that the jury
should have known that, even if he was not on medication at the time of trial, he was at
the time of the incident, as well as under psychiatric care. Appellant thought that
information could have swayed a decision by the jury.
       When asked to respond, defense counsel stated that he had discussed with
appellant the fact that diminished capacity was not a defense in this situation, but that it
might be an issue on certain elements of the attempted first degree murder charge. But
appellant’s issue of intent always went back to appellant’s belief that he had a defense of
duress or necessity. Defense counsel stated that at no time did appellant express a wish
to enter a plea of not guilty by reason of insanity. As for his competence, defense
counsel stated that appellant was examined by several doctors, one of whom, Dr. Geiger,
examined him closest to the time of the incident and found him competent.
       The trial court then asked defense counsel if, after reviewing appellant’s
documentation and the fact that he may or may not have been under medication at the
time of the incident, or may or may not have told him he wished to plead guilty by reason
of insanity, had defense counsel still considered an insanity plea. Defense counsel stated




                                             11.
that he did, but that appellant did not wish to do so. Instead appellant wanted to proceed
on finding supporting witnesses for the issue of duress or necessity.10
       Appellant insisted that defense counsel at no time asked if he was interested in a
plea for temporary insanity due to mental health issues.
       Appellant then asked that the trial court look at various documents he brought with
him to the hearing attached to his written motion.11 Defense counsel was allowed to
review the documents and stated that he was in possession of all of them. Included was
Dr. Geiger’s report, which was done as part of the section 1368 proceeding, in which the
doctor opined that, although appellant had a long history of mental illness, he was able to
communicate and speak with defense counsel in building a defense.
       In a final argument, defense counsel noted that, in regards to a section 1026
defense, appellant repeatedly asserted in all of his many Marsden hearings that he was
“not crazy” and could move forward in the case. According to defense counsel, at no
time did appellant want to say or admit that he was psychotic at the time of the incident,
and he was not interested in an insanity plea. Instead, he was steadfast on the issue that
he was forced into his actions during the incident.
       In its May 18, 2012, ruling on the Marsden hearing, the trial court summed up
appellant’s concerns as follows:

       “During the relevant Marsden hearing, [appellant] indicated that [defense
       counsel] had failed to take steps to investigate or otherwise address a
       potential mental health defense to the charges against him in this case.
       Specifically, [appellant] explained to the Court that at the time of the 2006
       incident, he was under medication for his mental health issues and believed


10     This is an issue we rejected in appellant’s previous appeal.
11     The documents were received by the court and included a psychological
evaluation done on April 3, 2008, pursuant to the competency proceeding. In it is
mention of the fact that Dr. Estner had done a psychiatric report on appellant dated
October 1, 2007.



                                            12.
       that such facts should have been raised in the defense to the charges against
       him.”
The trial court noted that the documents attached to appellant’s written motion confirmed
that he was a participant in the mental health system at Corcoran at a “CCCMS level of
care.” The trial court stated that, according to appellant, he told defense counsel that he
needed to secure his “C-file” and his mental health file from the prison and that his
mental health status at the time of the incident needed to be explored but that defense
counsel ignored his request.
       The trial court stated that defense counsel, in response to appellant’s allegations,
stated that the issue of appellant’s mental health was considered by him; that he
understood appellant to be at the CCCMS level of care at the time of the incident; and
that, in conversations with appellant, appellant insisted that he had no other option but to
take the action he did during the incident. The court also stated that defense counsel had
said he discussed with appellant the inconsistencies between a section 1026 defense and
his insistence that his actions were based on necessity and duress, and that the evidence
secured from appellant confirmed that he had planned the actions for some time prior to
the incident. The court stated that defense counsel had also discussed with appellant the
fact that diminished capacity was not a defense, but only relevant to the issue of his level
of intent.
       The trial court then stated:

       “Based upon the foregoing and the entire record before this Court, it’s
       hereby ordered the motion is denied. [¶] It appears that [defense counsel]
       appropriately considered and rejected as a matter of trial tactic[s] a mental
       health defense in favor of an affirmative defense, and based those theories
       of duress and necessity most consistent with the facts as relat[ed] to
       [defense counsel] by [appellant]. [¶] Disagreement over trial tactics does
       not warrant appointment of new counsel.”




                                             13.
       Applicable Law and Analysis
       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. (People v. Bills (1995) 38
Cal.App.4th 953, 961.) “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.” (People v. Crandell (1988) 46 Cal.3d 833,
854, abrogated on another ground as stated in People v. Crayton (2002) 28 Cal.4th 346,
364-365.) “The defendant … cannot rest upon mere failure to get along with or have
confidence in counsel.” (People v. Bills, supra, at p. 961.)
       A disagreement as to tactics and strategy is not sufficient to require a substitution
of counsel. (People v. Stewart (1970) 6 Cal.App.3d 457, 464-465.) There is “no
constitutional right to an attorney who will conduct the defense of the case in accordance
with an indigent defendant’s whims.” (People v. Nailor (1966) 240 Cal.App.2d 489,
494.) Neither can a defendant compel substitution of counsel through his own
intransigence and failure to cooperate. (People v. Kaiser (1980) 113 Cal.App.3d 754,
761.) “[A] defendant may not force the substitution of counsel by his own conduct that
manufactures a conflict.” (People v. Smith (1993) 6 Cal.4th 684, 696.)
       Appellant contends that the trial court erred in denying his most recent Marsden
motion because he demonstrated “colorable claims demanding appointment of counsel to
investigate a new trial motion based on failure to investigate and present apparently
significant medication/mental health issues going to diminished actuality.” (Full
capitalization omitted.) Based on his allegations of error, appellant requests that this
Court remand this matter again with instructions to appoint new counsel to investigate his
medication and mental health issues. In the alternative, appellant seeks to have this court
remand the case again for further inquiry in another Marsden hearing. We find no error
on the part of the trial court in denying appellant’s Marsden motion.

                                             14.
       On remand, this Court ordered the trial court to hold a Marsden hearing “focused
only on appellant’s complaints that he had mental health issues at the time of the
incident.” Despite appellant’s claims to the contrary, we find that the trial court properly
investigated his complaints about defense counsel’s investigation of his mental health
status at the time of the incident.
       At the Marsden hearing, the trial court gave appellant ample and repeated
opportunity to explain his mental health history and treatment and his concerns involving
defense counsel. During the hearing, appellant stated that he had raised his concern
regarding his mental health status at the time of the incident to defense counsel. As such,
appellant acknowledges that defense counsel was aware of appellant’s mental health
status and appellant’s belief that it should be used defensively.
       Defense counsel, in response to appellant’s statements and the trial court’s
questioning, demonstrated that he had considered an insanity defense for appellant, but
that appellant had refused to consider such an option. Defense counsel explained that,
after the trial court denied the defense request to present a defense of necessity or duress,
he considered the defenses of competency (§ 1368) and insanity (§ 1026). Defense
counsel then explained to the trial court why he did not present either of those defenses at
trial. Specifically, defense counsel stated that, while he did consider and discussed with
appellant the possibility of an insanity defense, appellant was adamant about not pursuing
such a defense.
       Thus, contrary to appellant’s claim, this was not a case where defense counsel
failed to consider appellant’s mental status at the time of the crime. Instead, because
appellant insisted on it, defense counsel instead prepared a duress or necessity defense,
which was subsequently not allowed by the trial court.
       In addition, contrary to appellant’s assertions on appeal, the record demonstrates
that defense counsel knew of appellant’s mental health history but determined that
appellant was not mentally impaired at the time of the crimes. Defense counsel explained

                                             15.
that he had a great deal of experience with medicated and mental health clients and
assured the trial court that he knew how to ask the court for help if he needed additional
professional assistance in assessing a client. In appellant’s case, defense counsel
discerned no indication that appellant did not understand the consequences of his actions
at the time of the incidents. Defense counsel noted that appellant’s judgment never
appeared clouded by medication, as evidenced by the fact that appellant took the time to
construct a weapon to attack the officers. Defense counsel, in fact, believed that
appellant’s actions in the attack were “deliberate.”
       The record supports, as the trial court found, that defense counsel made a
reasonable tactical decision not to present an insanity defense. The lengthy discussion
during the Marsden hearing demonstrates that both the trial court and defense counsel
adequately considered appellant’s mental health argument. Defense counsel repeatedly
affirmed that appellant could communicate with him, and that defense counsel believed
appellant understood the nature of his actions at the time he committed the crimes, as
evidenced by the fact that appellant took the time to fashion a weapon and believed he
was justified in attacking the officers in response to continued harassment.
       Based on defense counsel’s repeated affirmations that he presented appellant with
an option to enter an insanity plea, we find, as did the trial court, that defense counsel
sufficiently investigated appellant’s mental health issues at the time of the offense and
properly denied appellant’s Marsden motion. The fact that appellant did not agree with
defense counsel’s trial tactics is of no concern. (People v. Stewart, supra, 6 Cal.App.3d
at pp. 464-465; People v. Nailor, supra, 240 Cal.App.2d at p. 494.) Furthermore,
although appellant disagreed with defense counsel’s assertions that the two had discussed
an insanity plea, defense counsel repeatedly affirmed that he had. “To the extent there
was a credibility question between defendant and counsel at the hearing, the court was
‘entitled to accept counsel’s explanation.’“ (People v. Smith, supra, 6 Cal.4th at p. 696.)
Given the fact that defense counsel demonstrated an in-depth understanding of

                                             16.
appellant’s mental health status and its consequences, the trial court likely concluded
defense counsel’s explanation was more persuasive.
       We find that, on the record before us, and contrary to appellant’s assertions, the
trial court adequately considered defense counsel’s investigation into appellant’s mental
health status at the time appellant committed the offenses. The trial court therefore
properly denied appellant’s Marsden motion.
                                      DISCUSSION
       The judgment is affirmed.




                                            17.
