IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
VINCENT ERIC MORRIS, DEFENDANT AND APPELLANT.
Super. Ct. No. SF109494A
The opinion of the court was delivered by: Robie J.
P. v. Morris CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Vincent Eric Morris guilty of two counts of first degree robbery and one count of first degree burglary, and found true an allegation that a principal was personally armed with a firearm. Defendant then admitted allegations he had a prior strike conviction, a prior serious felony conviction, and had served a prior prison term. The trial court struck the prior prison term allegation and sentenced defendant to prison for a total of 18 years 4 months. Defendant timely filed this appeal.
Appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and defendant filed a supplemental brief. We conclude that none of the contentions raised by defendant have merit, and our independent review of the record discloses no error, except a typographical error in the abstract of judgment. We will order the trial court to correct the abstract and otherwise affirm.
Ralph Mason testified that on August 31, 2008, he lived in an apartment with Lisa Keovongxay, where he was robbed by defendant. Previously, Mason had told defendant he was looking for a cell phone, and defendant said he would let Mason know if he came across one. Late on the night of the robbery, defendant came to Mason's apartment with another man, who had a gun. As Mason struggled for the gun, defendant punched him in the temple, knocking him down. The other man grabbed a laptop and two cell phones, and demanded money from Keovongxay, while defendant watched Mason. Mason told the other man where Keovongxay's purse was, and that man took about $200 and the purse. The robbers also took a PSP video game. When the robbers left, Mason went to a neighbor's house to call his brother, rather than the police, because he was afraid, but after defendant knocked on his door several hours later, Mason called the police.
Mason was impeached with two prior felony convictions, possession for sale of methamphetamine and unlawful taking of a vehicle. Mason denied that defendant came to the apartment to buy narcotics. Mason claimed that a man had threatened him to discourage him from testifying and that Mason had reported this to the police. Before trial, the laptop was recovered.
Keovongxay gave a similar account but testified defendant and Mason spoke for several minutes by the door before the second man ran in. At one point the second man's bandanna fell, and she recognized him as "Jo-Jo," her brother's friend. She was impeached with a misdemeanor conviction for loitering with the intent to commit prostitution. She denied there were drugs in the apartment and that defendant came to buy drugs.
Detective Anthony DeSimone testified that Mason told him one of the robbers was the brother of someone named Fred, and by searching through a database he identified a photograph of Fredrick Morris, and this led to a picture of defendant, who Mason identified as the man who had punched him. Detective DeSimone then created a photographic lineup, and Keovongxay picked out defendant's photograph.
Keovongxay gave the detective the name "Jo-Jo" as the second man and identified a photograph of Christopher Dixon. Dixon had already pled guilty to residential robbery and assault with a firearm but refused to testify about the incident. Dixon testified at defendant's trial that he was the only perpetrator and he denied knowing defendant.
Officer Mitch Tiner testified that he and other officers went to a home in Stockton to arrest defendant and found the laptop in defendant's bedroom.
The defense argued the victims were lying to cover up a drug operation, pointing out inconsistent and implausible parts of their stories, and stating, "Only dope dealers open their house at 11:00 p.m." The defense also argued the victims were angry with defendant because "he did nothing to stop" Dixon from robbing them, as was defendant's right under the law, which "does not require you to put yourself in danger to help anybody."
After the guilty verdicts on the robbery counts were read, defendant interrupted and said he wanted to testify. After the jurors left the courtroom to complete the burglary verdict, defendant stated he had wanted to testify "from the git-go." Later, as the trial court was taking defendant's admission to the priors, defendant complained "Right now, I don't even have no attorney. I need rights. You all get all of them." As indicated, the trial court sentenced defendant to prison for 18 years and 4 months.
We address the contentions defendant raises in his supplemental Wende brief.
1. Defendant contends peace officers failed to investigate the case properly, and if they had asked the victims different questions, the victims' answers would have refuted or weakened their claim of robbery. Defendant's claim rests on speculation about what the victims might have said, but our review is limited to the record on appeal. (See People v. Szeto (1981) 29 Cal.3d 20, 35.)
2. Defendant contends the affidavit for the arrest warrant contained material misstatements and omissions. However, this issue was not litigated in the trial court and the record on appeal does not include the affidavit described by defendant's brief. A party objecting to evidence must litigate the issue in the trial court or it will be deemed forfeited. (People v. Davis (2008) 168 Cal.App.4th 617, 627-628.) "[R]review of a suppression issue may be obtained if and only if at some point before conviction the defendant raised the issue." (Id. at p. 629; see Pen. Code, § 1538.5, subd. (m).)
3. Defendant contends certain evidence was improperly seized under the plain view doctrine. Again, because no motion to suppress was filed, we decline to review this contention. (People v. Davis, supra, 168 Cal.App.4th at p. 629.)
4. Defendant contends his trial counsel was incompetent because he did not conduct an adequate pretrial investigation, did not challenge a warrant or move to suppress evidence, and failed to communicate a purported plea acceptance to the prosecutor. However, the record on appeal does not support any of these contentions of incompetence, therefore defendant must pursue these claims via habeas corpus, where the relevant facts can be determined. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)
5. Defendant separately claims trial counsel lied at a Marsden hearing (see People v. Marsden (1970) 2 Cal.3d 118) and there was a poor attorney-client relationship. We construe this as a contention that the trial court should have granted a Marsden motion and relieved trial counsel. As we shall explain, we disagree.
Under Marsden, "the California Supreme Court held that trial courts must give indigent criminal defendants an opportunity to state reasons in support of appointment of new defense counsel. 'A defendant "may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired." [Citation.] The law governing a Marsden motion "is well settled. '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].' [Citations.]" [Citation.]' We review the trial court's ruling on the motion for an abuse of discretion. [Citation.]" (People v. Henning (2009) 178 Cal.App.4th 388, 403.)
Defendant's complaints about trial counsel were aired and rejected at three separate Marsden hearings before three different judicial officers. Before describing those hearings, we first explain that at the preliminary hearing, Detective DeSimone testified he prepared a Ramey warrant (see People v. Ramey (1976) 16 Cal.3d 263 [warrant required to arrest person inside the home]), and when defendant was arrested, a laptop was found. Detective DeSimone Mirandized defendant (see Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]), who said the laptop "was dropped off by a guy named Jo-Jo, but it belonged to his brother Fred." Defendant had admitted being present during the robbery, stating he was there to buy drugs, and he picked up some drugs that fell to the floor during the Mason-Dixon struggle, and later paid Mason for them. The laptop had the victims' names as icons.
On March 26, 2009, at the first Marsden hearing before Judge Peter Saiers, defendant claimed his attorney, Maciel "had me written off" and had urged defendant to accept a plea offer. Defendant wanted Maciel to file motions, such as to challenge probable cause for the Ramey warrant and a Miranda motion. Maciel explained that he had told defendant he would not file frivolous motions, and he had found no colorable ones to file. Defendant wanted certain witnesses to be contacted, one of whom was in court. Maciel represented that defendant had made incriminating statements placing him at the scene, and the laptop was found in his room. Defendant conceded he had admitted he was present, and picked up some drugs during the robbery and paid for them later. Maciel said defendant's witness was unimportant, as she was not present during the robbery, and would only "say the computer came from somebody else, of course."
Judge Saiers denied the Marsden motion. There is no basis to disturb that ruling because defense counsel's explanations showed that although there were tactical disagreements between counsel and client, counsel was making rational, competent decisions about how to defend the case.
On June 11, 2009, at a second Marsden hearing before Temporary Judge Edward Lacy, defendant reiterated his complaint about Maciel not filing suppression motions based on the Ramey warrant and Miranda. Maciel explained that he had brought defendant an earlier four-year plea offer and had urged defendant to accept the offer before the prosecutor learned defendant had strikes, but defendant refused, and the strikes were discovered. Maciel repeated that he refused to file the motions defendant wanted because they were frivolous. He had interviewed defendant's brother, who had no useful information and had tried to interview another witness, who kept moving. As for a third witness, defendant's girlfriend, "I didn't interview her because I've already talked to her and, well, her story in my opinion is not going to help the defense in any way, shape or form. Her story sounds utterly uncredible, incredible, and as a defense counsel, I am not going to call witnesses just because my client wants me to." Another witness named "John" was the brother of one of the victims and was unlikely to be helpful, but if he could be found and interviewed, and Maciel thought he would help the defense, he would call him as a witness.
Temporary Judge Lacy denied the second Marsden motion. Again, because defendant presented nothing more than tactical disagreements with counsel, largely a rehash of earlier disagreements, we find no basis to disturb that ruling.
On August 18, 2009, at a third Marsden hearing before the trial judge, Judge Bernard Garber, defendant again brought up his desire for a suppression motion based on a defective affidavit, and challenged counsel's refusal to call defendant's girlfriend as a witness. Maciel explained that the girlfriend lacked credibility and that he would not file frivolous motions like the suggested suppression motion. Defendant suggested another witness, Jamie Lee, but Maciel stated Lee had been interviewed and proved "worthless" as a witness, that Maciel would not call a witness who was going to commit perjury, and in his experience, it was "the most absurd interview I had read. I have no intention of calling that person, none whatsoever."
Judge Garber denied the third Marsden motion. Again, we find no basis to disturb the trial court's ruling because defendant offered nothing more than tactical disagreements with counsel.
Given the evidence against defendant, we cannot say trial counsel's tactical decisions fell below accepted professional norms, and none of defendant's Marsden motions indicate that trial counsel lied to the trial court, as defendant asserts in his supplemental brief. Therefore we reject his claims.
In response to appellate counsel's request that we review the record and determine whether there are any arguable issues on appeal (People v. Wende, supra, 25 Cal.3d at p. 436), we have examined the entire record and we have found no arguable error that would result in a disposition more favorable to defendant.
However, we have found a typographical error in the abstract of judgment that must be corrected. The trial court awarded defendant 373 days of actual presentence credit and 55 days of conduct credit, pursuant to the 15 percent limitation on conduct credit provided by Penal Code section 2933.1. However, the abstract in part states the trial court awarded 838 days of actual credit and 55 of conduct credit. An abstract must accurately reflect the trial court's ruling. (See People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 385-390.) Accordingly, the trial court must prepare a corrected abstract of judgment.
The judgment is affirmed. The trial court is directed to prepare and forward to the Department of Corrections a corrected abstract of judgment.
RAYE, P.J. BUTZ ,J.
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