Filed 3/25/14 P. v. Dungey CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063403

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD242039)

DEMETRIOS DUNGEY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Peter L.

Gallagher, Judge. Affirmed.

         Kleven McGann Law and Sarah Kleven McGann, 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, Peter Quon, Jr. and Minh U. Le,

Deputy Attorneys General, for Plaintiff and Respondent.
       Demetrios Dungey was charged with one count of criminal threats (Pen. Code,1

§ 422); one count of dissuading a witness (§ 136.1, subd. (c)(1)); one count of threatening

a witness (§ 140) and misdemeanor trespass (§ 602, subd. (k)). It was also alleged that

Dungey had served two prior prison terms (§ 667.5, subd. (b)).

       Following a jury trial, Dungey was convicted of criminal threats. The jury

acquitted on the remaining counts. Dungey admitted the alleged prison priors.

The court sentenced Dungey to a total term of two years seven months in prison.

       Dungey appeals contending the trial court erred in failing to conduct a second

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

contends the court erred in permitting the introduction of certain vulgar statements

Dungey made to a police officer at the time of his arrest and booking. We will find no

error and affirm.

                                STATEMENT OF FACTS

       In the morning of July 15, 2012, San Diego Police Officer Eric Cooper observed

Dungey and another individual standing outside a liquor store on El Cajon Boulevard.

The two were standing under a "no loitering sign." As the officers approached Dungey,

he became angry and shouted "fuck you" many times.

       The store employee told police he did not want Dungey and his companion to

stand outside the store. Officer Cooper issued Dungey a citation for trespassing. Again

Dungey became angry and launched into another diatribe. He said, " Cooper, you're a



1      All further statutory references are to the Penal Code unless otherwise specified.
                                             2
bitch for listening to that snitch. This is kid shit. Fuck you." Dungey then turned to the

employee and said, "You snitch nigger. You'll see what happens."

       Dungey walked away from the store, but returned in three or four minutes. Police

had waited nearby to see if Dungey might return.

       Dungey went into the store and told the employee: "I will kill you. I'll kill your

father. I will kill your daughter. I will come in the night. Let the police help you in the

night if you are a man." The employee testified he was frightened, wanted to go home

and remained afraid for a week. Dungey was arrested.

       During the processing at the jail, Dungey again became angry, made threatening

statements about Officer Cooper's family, including threats to have sexual intercourse

with Cooper's daughters.

                                       DISCUSSION

                                              I

                           THE SECOND "MARSDEN" MOTION

       On the day of jury selection and in limine motions, Dungey made a request to

relieve appointed counsel and replace him with another appointed counsel. Following

that request, the trial court held an in camera hearing and allowed Dungey to express his

reasons for requesting new counsel. The court heard counsel's response and let Dungey

respond to counsel's comments. Thereafter, the court denied the motion to relieve

counsel. That hearing was conducted at 10:20 a.m. on the trial date. Dungey does not

challenge the trial court's exercise of discretion in denying the request.



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       After denying the Marsden motion the court heard in limine motions and other

matters with counsel and Dungey present. As the court was concluding the morning

session, Dungey addressed the court and said: "Excuse me sir, we're not getting along. I

don't want this man representing me, sir, truthfully, I don't." The court explained the

Marsden motion had been denied and it was denied. Dungey responded: "So how is it

that someone I'm not getting along with is still representing me?" The court observed

that they may not be getting along, but that defense counsel was acting in Dungey's best

interest, and again denied the motion.

       While the clerk did not record Dungey's comments in the minutes as a motion, the

minutes and the transcript reflect that the remarks immediately preceded the noon recess,

which occurred at 11:55 a.m.

       Dungey contends the trial court erred in failing to hold a second in camera

proceeding to allow Dungey to further explain his reasons for seeking new counsel, and

thus the court failed to comply with the requirements of Marsden, supra, 2 Cal.3d 118.

After reviewing the record, we conclude the trial court did not err, under the

circumstances of this case, in failing to conduct a second Marsden hearing, two hours

after conducting a full hearing and determining there was no basis to relieve defense

counsel. We agree the trial court was somewhat abrupt in responding to Dungey,

however, given the proper denial of a Marsden motion very shortly before Dungey's

renewed complaint, the court could reasonably conclude Dungey was simply attempting

to rehash his meritless complaints about trial counsel. No hearing was requested by



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Dungey and the court could reasonably conclude none was required to gain further

information about Dungey's complaint.

                                   A. Legal Principles

       Where a defendant makes clear that he or she is requesting new appointed counsel

the court should hold a hearing to review the reasons for such request. (People v. Dickey

(2005) 35 Cal.4th 884, 920; People v. Clark (2011) 52 Cal.4th 856, 918.) Ordinarily,

hearings on a request to replace counsel should be done in camera. (People v. Lopez

(2008) 168 Cal.App.4th 801, 815 (Lopez).)

       While courts are required to give defendants an opportunity to explain their

reasons for a request to replace appointed counsel, we do not believe such rule requires

courts to stop the proceedings every few minutes to allow a defendant multiple

opportunities to repeat or reargue meritless grounds for replacing appointed counsel. The

purpose of the Marsden process is to ensure the trial court is aware of the reasons for the

defendant's request. (See Lopez, supra, 168 Cal.App.4th at pp. 814-815.)

                                       B. Analysis

       Dungey approaches this issue as if his renewed request for replacement of counsel

was a new, free standing request, separate from that which went before. That is not the

record in this case.

       As we have noted, Dungey received a full and fair hearing on his request, which

finished about 10:30 a.m. It is apparent from the transcript of the Marsden hearing that

Dungey and counsel were "not getting along." Dungey wanted counsel relieved and

accused counsel of statements and conduct that counsel plainly denied. It is impossible

                                             5
to read the transcript and believe the trial court would not know Dungey and counsel

were not getting along at the time of the hearing. We also know Dungey does not

challenge the trial court's decision to deny his request.

         The record demonstrates that for less than two hours Dungey and counsel were in

court while the parties argued a number of issues. Dungey and counsel were in the

court's view the entire time, and there is nothing in the record to indicate something new

occurred between about 10:30 a.m. and 11:55 a.m. when the court actually recessed.

Rather, the court could reasonably understand that Dungey's last comments were simply a

continuation of his previously articulated complaints. He had already addressed counsel's

alleged performance deficiencies. All the last remarks do is simply say in effect "in

addition to what I have said, we don't get along." As both sides recognize, simply "not

getting along" with competent appointed counsel is not grounds for replacement of

counsel. A defendant is not granted veto power over the appointment of counsel by

simply announcing they are not getting along. (People v. Jones (2003) 29 Cal.4th 1229,

1246.)

         In a perfect world the court could have made further inquiries to see if something

new had happened between the Marsden hearing and the last comments. However, given

the brief time between requests and the fact all activities in the interim had been before

the court, we are satisfied no further in camera hearing was required.




                                              6
                                              II

                                 OFFENSIVE STATEMENTS

          After Dungey was arrested he continued a barrage of hostile and offensive remarks

to the officers. During the processing at the jail, Dungey directed some threatening

remarks to Officer Cooper, which although not charged as an offense, the prosecution

offered as evidence of Dungey's intent during the charged offense.

          Dungey said to Officer Cooper: "Cooper, I bet your wife is getting fucked in the

ass right now as we speak." "Cooper, that store bitch [employee] and you are a bunch of

bitch niggers who need to come to West Hollywood." "We will show you what real men

do." "Cooper, I'm going to fuck your daughters when I get out." "You know that, right?"

"Cooper, let me see you out on the streets without that badge and your gun." "You don't

come around my area."

          Dungey moved in limine to exclude the statements as irrelevant and unduly

prejudicial. The trial court found the statements, which included a reference to the store

employee, related back to the charged offense. The court found the statements relevant to

show Dungey's intent. The court said it was conducting an analysis under Evidence Code

section 352 and found the probative value of the statements outweighed any prejudicial

effect.

          Dungey contends the trial court erred because any marginal relevance was

outweighed by the prejudicial impact of the statements to a police officer after the arrest.

We find no abuse of discretion, hence no error in admitting the statements.



                                               7
                                     A. Legal Principles

       We review the trial court's evidentiary rulings under the abuse of discretion

standard. We will not set aside such ruling in the absence of a record which demonstrates

a clear abuse of the trial court's broad discretion. (People v. Brown (2003) 31 Cal.4th

518, 534-535, 545.)

       Evidence is relevant if it has a tendency in reason to prove or disprove any

disputed fact of consequence to the determination of the action. (Evid. Code, § 210.)

Evidence of uncharged crimes is generally inadmissible to prove criminal disposition.

However, such evidence is admissible to prove relevant facts, such as intent, identity,

lack of mistake, etc. (Evid. Code, § 1101, subd. (b); People v. Garrett (1994) 30

Cal.App.4th 962, 966-967.) In order to ensure fairness, the trial court must not only find

relevance, but must also weigh the probative value of such evidence against its

prejudicial impact. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

                                        B. Analysis

       Dungey's hostile and threatening remarks not only were directed at Officer

Cooper, but included threats to the store employee in those remarks. The remarks are

close in time to the charged threats, but also are of a similar nature including implied

threats to the person, but also threats of harm to the officer's family members, just as

Dungey's threats to the store employee included. It seems clear that Dungey's angry

outburst toward the officer demonstrated a state of mind consistent with specifically

intending to frighten his victims.



                                              8
       We cannot say the trial court abused its discretion in finding the probative value of

the evidence outweighed any potential prejudice. The nature of the remarks to the officer

were consistent with Dungey's angry and threatening ranting. There is no reason the later

remarks would have somehow inflamed the jury. Indeed, the jury acquitted Dungey of

all but one count. We are satisfied there was no prejudicial error in admitting the

statements made to Officer Cooper.

                                      DISPOSITION

       The judgment is affirmed.




                                                                            HUFFMAN, J.

WE CONCUR:



             BENKE, Acting P. J.


                      HALLER, J.




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