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People v. Carter

February 26, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MYLES S. CARTER, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. John A. Torribio, Judge. Affirmed. (Los Angeles County Super. Ct. No. VA103648).

The opinion of the court was delivered by: Rubin, J.

CERTIFIED FOR PUBLICATION

Defendant Myles S. Carter appeals from his conviction of second degree robbery. He contends the trial court erred in: (1) denying his Marsden motion;*fn1 (2) denying his motion to suppress; and (3) failing to give pretrial instructions. We affirm.

FACTS

Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), the evidence established that at about 3:45 p.m. on December 14, 2007, Elizabeth Tamayo was working alone at the front counter of a fast food restaurant in Whittier, while all of her co-workers were working in the back of the restaurant. Defendant entered the restaurant wearing blue jeans, a black hooded sweater and sunglasses; his hands were in the front pockets of the sweater and the hood was pulled up and down over his forehead. He handed Tamayo a note that read, "Give me all the money and don't say anything." Understanding that she was being robbed, Tamayo gave defendant all of the money in two cash registers. Defendant put the money in his pockets, retrieved his note and walked out of the restaurant without ever having said a word.

Later that afternoon, police brought Tamayo to a location less than a mile from the restaurant to identify a suspect. Tamayo saw defendant about 15 feet away and identified him as the person who robbed her. Tamayo was confident of her identification even though defendant was wearing a white T-shirt and not a black sweater. About two weeks later, Tamayo identified defendant again in court.

PROCEDURAL BACKGROUND

At his preliminary hearing on December 31, 2007, defendant was represented by Deputy Public Defender Lynn Storing. But at his arraignment on January 14, 2008, defendant was represented by Deputy Public Defender Robert Noguchi. After Noguchi entered a not guilty plea on defendant's behalf, the following colloquy ensued: "THE DEFENDANT: I want a Marsden hearing. [¶] THE COURT: Did you just talk to him right now? [¶] MR. NOGUCHI: I talked to him downstairs. [¶] THE COURT: Oh, okay. [¶] How do you know you want to get rid of him if you just talked to him for a few minutes? What do you want? Do you want another lawyer? Is that what you want? [¶] THE DEFENDANT: I would like to -- conflict of interest, sir. I would like to represent myself. [¶] THE COURT: Oh, you want to represent yourself? [¶] THE DEFENDANT: I would like to, yes. Represent myself. My 6th Amendment. [¶] THE COURT: That's the right one. [¶] THE DEFENDANT: Okay." After warning defendant that representing himself was not in his best interest, the trial court observed: "[L]ike you said, you have a constitutional right to do it. So, if that is really what you want to do. [¶] THE DEFENDANT: Yes, what I want to." Whereupon the trial court relieved Noguchi and granted defendant's motion to represent himself.

Defendant represented himself at the March 12, 2008 hearing on his motion to suppress evidence obtained as a result of an unlawful traffic stop. After denying the motion, the trial court granted defendant's request to have counsel again appointed. The public defender's office was reappointed, with Attorney Craig Purcell appearing for defendant. The matter was continued to April 9, 2008. On that date, defendant was once again represented by Deputy Public Defender Noguchi. The matter was continued twice more.

On May 21, 2008, Noguchi announced that defendant was asking for a Marsden hearing. At the hearing which followed, defendant explained that since Noguchi had been representing him he had not done what defendant had asked him to do.*fn2 Defendant explained that "as far as... interviewing witnesses and talking to the victims and getting statements from them. He hasn't -- I just don't feel like he is representing me to the fullest of his capabilities. [¶] I think there is a conflict, a serious conflict of interest between myself and my attorney, and I would like, would like to dismiss him as my, my attorney." Noguchi responded that he talked to the investigator that morning and that the investigator needed a few more days to complete the interviews. Defendant complained that Noguchi was "dragging his feet. He is not, you know, he is not proceeding to the fullest extent of his capabilities. I asked him to file motions that I have, you know, I have done research on I feel like, you know, would really help my cause, would help the case, you know, but he, he says he is not going to do it. [¶] And I just feel like he hasn't done anything." Defendant said he wanted Noguchi to file a motion to set aside the information "or motions pursuant to the no evidence rule. There is no evidence that support certain elements of the charged offense. [¶] I do qualify for the lesser included, and I asked him, you know, to --" The trial court explained that the motions to which defendant referred were motions that were properly made during the trial, not before the trial. In response to the trial court's inquiry whether there was anything else, defendant stated: "I just, you know, really the main thing that was really just, you know, I had a problem with was just the fact that my first, when he was first assigned to my case I asked him to get, you know, interview witnesses and it just now happened, you know, over 90 days later, along with, you know, you know, during the visit, via monitored visits, you know, it has been we are just arguing back and forth not making any progress at all." Defendant concluded: "I just feel that Mr. Noguchi's attitude it's not going to be productive at all. I just don't feel like his is going to present the case." The trial court denied the Marsden motion.

After several more continuances, Noguchi appeared on behalf of defendant on June 3, 2008, and declared a conflict of interest. Salvador Barajas of the alternate public defender's office was appointed to represent defendant, and the trial was continued once again.

Jury trial commenced on July 16, 2008, with defendant represented by Public Defender Barajas. On July 18, 2008, the jury found defendant guilty of second degree robbery and defendant admitted a prior conviction. He was sentenced to 11 years in prison. Defendant filed a timely notice of appeal.

DISCUSSION

A. Defendant Did Not Make a Marsden Motion at ...


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