THE PEOPLE v. MICHAEL HICKMAN (2010)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

A jury convicted appellant, Michael Hickman, of possession of a weapon by a prison inmate (Pen.Code, § 4502, subd. (a)),¹ and in a separate proceeding, appellant admitted allegations that he had suffered two “strikes.” ²  The court imposed a prison term of 25 years to life, and ordered that term to run consecutive to the term appellant was serving at the time he committed the instant offense.

After trial, the court conducted a Marsden hearing.³  Following the hearing, the court concluded there was “no basis for appointment of new counsel on the Marsden issue.”   On appeal, appellant's sole contention is that the court “erred in denying [appellant's] motion for appointment of counsel to investigate ineffective assistance of defense counsel occurring outside the courtroom.”   We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts

At approximately 1:00 p.m., on September 14, 2008 (September 14), Correctional Officer Cecilia Agostini, who was employed at Corcoran State Prison (CSP), was informed that appellant, an inmate at CSP, was going to be placed in administrative segregation (AS).⁴  The AS placement had been ordered based on a complaint Officer Agostini had made earlier that day that appellant had been “over familiar[ ]” with her.   She made this complaint “right after [appellant] gave [her] a letter.”   He had never given her a letter before and she had not had any “problem” or “issues” with appellant prior to September 14.

Officer Agostini was instructed to conduct an inventory of appellant's property.   She went to the cell appellant shared with his cellmate, Ronald Davis;  appellant was removed from the cell;  and Officer Agostini directed Davis to place appellant's personal property in “state bags.”   Davis did so, at which point Officer Agostini took appellant's property to the dining area where she inventoried the items.

Among appellant's property was a television set.   It had appellant's name and “CDC number” engraved on it, and it appeared to have been tampered with.   Specifically, it “had some missing screws.”   Officer Agostini “opened up the television” and inside found a metal screw, approximately four and one-half inches long, that had been sharpened to a point and “attached to a plastic melted brown state cup.”   The officer identified the object as an “inmate-manufactured weapon.”

Correctional Sergeant Robert Moreno testified to the following:  He was on duty at CSP when, at some time after 1:00 p.m. on September 14, he went to the “holding cell area.”   Appellant and Davis were in separate holding cells.   Sergeant Moreno told them they were going to be placed in AS. In response to a question from Davis, the sergeant told Davis he was being taken to AS “[f]or possession of an inmate-manufactured weapon.”   At that point, appellant “stated that the weapon that was found in the TV belonged to him.”   Appellant stated further that he had the television when he had been confined in another institution, and the weapon had been inside the television since he had transferred from that institution.

Ronald Davis testified to the following:  While he was in a holding cell, Sergeant Moreno informed him that he was going to be “moved” because “they found a knife in a television.”   Appellant and another officer were also “present” at the time.   Davis heard a “conversation[ ] between [appellant] and Sergeant Moreno,” and at no time did appellant admit that the weapon was his.

Post-Trial Motions

Trial concluded on September 29, 2009, and the next day appellant admitted the strike allegations.   On October 26, 2009, appellant filed a “Motion for Trial Court to Set Aside Guilty Verdict Request for Hearing” (unnecessary capitalization omitted) in which he asserted the trial court had made various errors and his counsel, Robert Stover, had provided inadequate representation.

On November 6, 2009, appellant appeared in court with his attorney, at which time Stover asserted that appellant's motion was “tantamount to a motion for new trial based on an allegation of ineffective assistance of counsel” and asked the court “to hold a Marsden Hearing.”   The court agreed, ordered the prosecutor excluded and, with the prosecutor out of the courtroom, asked appellant his “reasons [for] seeking new counsel.”   Appellant responded at some length;  his response included the following:

“Now, the fact that CO Agostini had many, many a reasons why, many a reasons [sic ] to come up with this, she found something in the TV, is-is enough right there to show that it should have been allowed to bring up previous to her discovery all the incidents that occurred between me and her and the witnesses that seen these things between me and her beforehand, which goes as to her credibility of what she was saying the whole time.   And that's basically where I'll leave it at.”

Mr. Stover responded to each of appellant's complaints.   His response to the complaint regarding Officer Agostini quoted above consisted of the following:

“And Officer Agostini's reasons for prejudice between [appellant] and Officer Agostini, Officer Agostini was questioned on those issues in regards to that, and a witness was called in regards to the prior contacts In Re:  Quote, unquote, over familiarity on the accusation by Officer Agostini against my client in regards to over familiarity, and the accusation for my client against Officer Agostini are the same issue, as an issue of credibility for Officer Agostini basis and reasons for fabricating that information in the trial.”   (Sic.)

Shortly thereafter, the court ruled:  “I'm going to find ․ no basis for appointment of new counsel on the Marsden issue.   And I do not feel that there has been adequate basis shown ․ requiring new counsel [to] be appointed.”

DISCUSSION

Appellant argues that at his Marsden hearing, he presented a “colorable claim” that his counsel provided inadequate representation by failing to investigate a meritorious defense, viz., that Officer Agostini lied about finding the weapon in appellant's television set, and that, therefore, the court abused its discretion in refusing to appoint substitute counsel to investigate his claim of ineffective assistance of counsel.   We disagree.

In People v. Bolin (1998) 18 Cal.4th 297 (Bolin ), our Supreme Court explained what must transpire when a defendant makes a posttrial request for a Marsden hearing in conjunction with a claim that a new trial is justified on the ground of ineffective assistance of counsel.  “ ‘When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request.   [Citations.]  If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant.  [Citation.]  If, on the other hand, the defendant's claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial.  [Citations.]’  [Citation.]”  (Bolin, at p. 346.)

The “colorable claim” language originated in People v. Stewart (1985) 171 Cal.App.3d 388, 396-397 (Stewart ), which was the first case to apply Marsden posttrial.  (See People v. Smith (1993) 6 Cal.4th 684, 691 (Smith ).)   Our Supreme Court has made it clear that this does not state a lesser standard than that established in Marsden.  (Smith, at pp. 693-694.)   Instead, “the standard expressed in Marsden and its progeny applies equally preconviction and postconviction․  A defendant has no greater right to substitute counsel at the later stage than the earlier.”  (Id. at p. 694.) ⁵  Therefore, the following well-established principles apply:

“ ‘ “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. Hart (1999) 20 Cal.4th 546, 603 (Hart ).)  “ ‘In so doing, the court must make such inquiries of the defendant and trial counsel as in the circumstances appear pertinent.’ ”  (Smith, supra, 6 Cal.4th at p. 691.)  “ ‘ “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].”  [Citations.]’ ”   (Hart, at p. 603.)   A Marsden motion should only be granted where the defendant has made “a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.”  (People v. Crandell (1988) 46 Cal.3d 833, 859, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)   Whether a defendant has made the “required showing” for appointment of substitute counsel “lies within the exercise of the trial court's discretion, which will not be overturned on appeal absent a clear abuse of that discretion.”  (Smith, at p. 696.)

Here, appellant does not contend he was not given an adequate opportunity to present his complaints or that the court did not adequately inquire into those complaints.   Rather, as indicated above, appellant asserts he made the required showing that trial counsel was providing inadequate representation by failing to investigate a meritorious defense, viz., that Officer Agostini, the chief witness against him, lied.   Specifically, he asserts, as best we can determine, as follows:  there was an “ongoing dispute” and a “relationship” between appellant and Officer Agostini, as evidenced by what appellant described at the Marsden hearing as “incidents that occurred between [appellant] and [Officer Agostini]” prior to the date of the officer's purported discovery of the weapon;  various persons witnessed these incidents;  and counsel failed to attempt to contact these witnesses or “review prison documents chronicling the relationship between [appellant] and Officer Agostini.”   Appellant's contentions are without merit.

Appellant did not specify below, nor does he specify on appeal, what occurred during the purported incidents, what the testimony of these witnesses would have been, or what the “prison documents” showed.   He has made no showing that any relevant evidence existed that his counsel did not adequately investigate.   Thus, he “has failed to establish as a demonstrable reality any professional lapse in the defense actually employed.  [Citation.]”  (People v. Cox (1991) 53 Cal.3d 618, 662.)  “We cannot evaluate alleged deficiencies in counsel's representation solely on defendant's unsubstantiated speculation.”  (Ibid.) On this record, appellant has not “ ‘ “clearly show[n]” ’ ” that his counsel was “ ‘ “not providing adequate representation [citation] or that defendant and counsel [had] become embroiled in such an irreconcilable conflict that ineffective representation [was] likely to result [citations].”  [Citations.]’ ”  (Hart, supra, 20 Cal.4th at p. 603.)   Therefore, appellant has not established that the trial court abused its discretion in denying his Marsden motion.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds.(b)-(i);  1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law..  FN2. We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds.(b)-(i);  1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

FN3. In People v. Marsden (1970) 2 Cal.3d 118 (Marsden ), the California Supreme Court held that when a criminal defendant requests a new appointed attorney, a trial court must conduct a proceeding in which it gives the defendant an opportunity to explain the basis for the contention that counsel is not providing adequate representation.  (Id. at pp. 123-125.)   A motion for the appointment of substitute counsel on the ground that the current appointed counsel is providing inadequate representation, and the hearing on that motion, are commonly called, respectively, a Marsden motion and a Marsden hearing..  FN3. In People v. Marsden (1970) 2 Cal.3d 118 (Marsden ), the California Supreme Court held that when a criminal defendant requests a new appointed attorney, a trial court must conduct a proceeding in which it gives the defendant an opportunity to explain the basis for the contention that counsel is not providing adequate representation.  (Id. at pp. 123-125.)   A motion for the appointment of substitute counsel on the ground that the current appointed counsel is providing inadequate representation, and the hearing on that motion, are commonly called, respectively, a Marsden motion and a Marsden hearing.

FN4. Except as otherwise indicated, our factual statement is taken from Officer Agostini's testimony..  FN4. Except as otherwise indicated, our factual statement is taken from Officer Agostini's testimony.

FN5. The court in Smith “disapproved Stewart to the extent it suggested a defendant has a greater right at the later stage of a trial to substitute counsel under [Marsden ].”  (Bolin, supra, 18 Cal.4th at p. 346, fn. 16.).  FN5. The court in Smith “disapproved Stewart to the extent it suggested a defendant has a greater right at the later stage of a trial to substitute counsel under [Marsden ].”  (Bolin, supra, 18 Cal.4th at p. 346, fn. 16.)