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The People v. Todd Allen Cole

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)


July 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TODD ALLEN COLE, JR., DEFENDANT AND APPELLANT.

(Super. Ct. No. CRF09469)

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

P. v. Cole

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Todd Allen Cole, Jr., was convicted of voluntary manslaughter (Pen. Code, § 192, subd. (a))*fn1 and sentenced to 14 years in state prison. He contends on appeal that the trial court should have held a Marsden*fn2 hearing based on the content of a letter defendant sent to the trial court.

We conclude the trial court did not err, because defendant did not indicate to the trial court that he wanted substitute counsel. We will affirm the judgment.

BACKGROUND

On July 25, 2009, Scott Malmstrom's body was found in his apartment in Yuba County. Malmstrom died from 17 stab wounds to his neck, chest and chin. Defendant was identified as a possible suspect after his fingerprints were found on a beer can inside Malmstrom's apartment. While in jail, defendant told another inmate that he and his brother stabbed "some child molester" to death.

Defendant was initially charged with second degree murder (§ 187, subd. (a)). It was further alleged that defendant personally used a knife in the commission of his crime (§ 12022, subd. (b)(1)) and served two prior prison terms (§ 667.5, subd. (b)). The matter went to trial, the jury deadlocked, and the trial court declared a mistrial.

The prosecution subsequently amended the information to include a charge of voluntary manslaughter (§ 192, subd. (a)). Defendant entered a negotiated plea of no contest to voluntary manslaughter (§ 192, subd. (a)), admitted using a knife in the commission of his crime (§ 12022, subd. (b)(1)), and admitted serving two prior prison terms (§ 667.5, subd. (b)). In exchange for defendant's plea, the prosecution agreed to a sentencing lid of 14 years in state prison.

On September 13, 2010, defendant wrote a letter to the trial court, stating in part: "I need to subpoena Sgt. Williamson and audio and video of the interview between me and him on Aug. 27[,] 2009, to my next court hearing on the 20th of Sept[.] 2010 at 9:[00] AM.

"On the 19th of Aug[.] 2010 I took a deal in your court room, their [sic] were some papers provided by DA John Va[c]ek, I would like to request copies from you since my attorney fails to comply with my requests.

"I would like to review audio and video before my next court date.

"I would also like to request a copy of the hold Sgt. Williamson placed on me pending a 187 charg[e] Aug[.] 27 or Aug[.] 28[.] It is in my file here at the jail.

"I would like to speak with you if possible."

An attorney for the trial court responded to defendant's letter: "I regret that the judge cannot engage in ex parte, or one-sided communications with a party to any case. Judge O'Connor therefore cannot speak with you, as you have requested. Further, all applications for any kind of relief should be presented through your attorney."

Defendant was subsequently sentenced to 14 years in state prison in accordance with his plea. The trial court awarded defendant 456 days of presentence credit (397 days of custody credit and 59 days of conduct credit)*fn3 and ordered him to pay various fines and fees. Defendant appeals without a certificate of probable cause.

DISCUSSION

Defendant contends his September 13, 2010, letter to the trial court was sufficient to trigger the trial court's duty to conduct a Marsden hearing, and that the trial court's failure to conduct a Marsden hearing was error. The Attorney General argues that defendant's claim is barred by his failure to obtain a certificate of probable cause, and that his claim fails in any event because the September 13, 2010, letter did not trigger any duty to hold a Marsden hearing.

Even if defendant's claim could be raised without a certificate of probable cause, we agree with the Attorney General that defendant's claim lacks merit.

"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.] '"Although no formal motion is necessary, there must be 'at least some clear indication by defendant that he wants a substitute attorney.'" [Citations.]' [Citation.] While the law does not require that defendant use the word 'Marsden' to request substitute counsel, we will not find error on the part of the trial court for failure to conduct a Marsden hearing in the absence of evidence that defendant made his desire for appointment of new counsel known to the court. [Citation.]" (People v. Richardson (2009) 171 Cal.App.4th 479, 484.)

Here, defendant made no request for substitute counsel, either written or orally to the court. Defendant submitted his September 13, 2010, letter to the court after he pleaded no contest to voluntary manslaughter. The letter requested certain evidence be given to him prior to the sentencing hearing, indicated defendant's attorney failed to turn over "papers" provided at the plea hearing, and asked to speak with the judge directly. Nowhere in the letter did defendant complain about the adequacy of his representation at trial, nor did he request new counsel to provide representation at sentencing or for any other purpose going forward. Accordingly, we find no error.

DISPOSITION

The judgment is affirmed.

We concur: RAYE, P. J. BLEASE, J.


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