(Super. Ct. No. 09F01534)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After four unsuccessful attempts to have his appointed counsel removed and new counsel appointed pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), defendant Jimmy Ray Bradley advised the trial court, on the eve of trial, that he wanted to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta). The trial court granted his request on the condition the trial would not be continued. Defendant agreed, but later asked the court to continue the trial so that he could prepare. The trial court denied his request, and thereafter defendant sought to have new counsel appointed. The trial court denied defendant's request for new counsel, but advised him that it was willing to reappoint previously appointed counsel. Defendant stated that he would not "accept" previously appointed counsel, and thus, continued to represent himself. After jury selection commenced, defendant refused to return to court, and the trial proceeded in his absence.
The jury found defendant guilty of possession for sale of methylenedioymethamphetamine (MDMA or Ecstasy) (Health & Saf. Code, § 11378)*fn1 and possession for sale of marijuana (§ 11359). It also found true allegations defendant had four prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), served one prior prison term (id. § 667.6, subd. (b)), and had three prior drug convictions (§ 11370.2, subd. (c)).
After the jury rendered its verdict, defendant moved for new counsel and an investigator to assist him with the judgment and sentencing phase of the proceedings. The trial court denied the motions and sentenced defendant to an aggregate term of 35 years to life in state prison, consisting of 25 years to life for possession of MDMA for sale, plus a consecutive three years for each of the prior drug convictions, plus a consecutive one year for the prior prison term. Defendant was sentenced to a concurrent 25 years to life for possession of marijuana for sale.
Defendant appeals, contending the trial court erred in (1) denying his four Marsden motions; (2) granting his untimely Faretta motion, denying his reverse-Faretta motion, failing to reappoint attorney Clemente Jimenez after defendant elected not to attend trial, failing to appoint new counsel to assist defendant with his new trial motion; (3) failing to appoint an investigator and acting in concert with the pro per coordinator to mislead defendant regarding the failure; and (4) allowing the trial to proceed in defendant's absence. We granted defendant's request to file a supplemental brief on the issue of whether his conviction for possession of MDMA for sale is supported by substantial evidence. We shall conclude that substantial evidence supports that conviction, and that defendant's remaining claims likewise lack merit. Accordingly, we shall affirm the judgment.
On the afternoon of February 27, 2009, two undercover police officers observed defendant and another man loitering inside an apartment complex and asked two uniformed officers to make contact with the two men. The uniformed officers made contact one to two minutes later. After observing that defendant had his left hand in his left pocket, one of the officers asked defendant to remove it. When defendant failed to respond, the officer asked him to state his name. When defendant again failed to respond, the officer asked defendant "if he had anything illegal on him." Defendant said he had "weed and E," which are common street names for marijuana and Ecstasy. The officer searched defendant and found a plastic bag containing 49 yellow pills and a plastic bag containing nine one-inch by one-inch baggies of what appeared to be marijuana in defendant's right front pocket, and a cell phone in his pant pocket. Defendant was placed under arrest.
Thereafter, the two undercover officers arrived at the scene. After defendant was given and agreed to waive his Miranda*fn3 rights, he told one of the undercover officers, "[T]here's just 20 something pills, and then however much marijuana. It's possession for sale." He also stated, "I'm out here just trying to get by. What am I supposed to do for money?"
The uniformed officers drove defendant to jail in their patrol car. During the ride, defendant stated generally that "he was out there to sell the pills, that he was selling them for $5 apiece, that it would take him anywhere from two to three days to sell the quantity that [the officers] recovered, and that he was doing so because he only worked part-time as a telemarketer, and that his rent was around $400."
It was later determined that the 49 pills possessed by defendant were MDMA, and the nine small baggies contained a total of 3.15 grams of marijuana.
In addition, the cell phone found in defendant's pocket contained recent outgoing text messages that appeared to relate to drug sales. For example, one message read, "Yes, just wait. You can buy your bag from me and I'm going to smoke one." Another recent outgoing text message read, "I got E pills now, too." There were also recent incoming text messages of a personal nature addressed to "Jimmy B."
Defendant did not testify or present any defense at trial. Rather, after jury selection commenced, he elected not to attend trial.
The Trial Court Properly Denied Defendant's Marsden Motions
Defendant first contends the trial court abused its discretion in denying each of his four Marsden motions. We disagree.
1. July 10, 2009, Marsden Motion
On March 25, 2009, Clemente Jimenez was appointed to represent defendant. On July 10, 2009, defendant moved to relieve Jimenez and have new counsel appointed. Defendant complained that Jimenez was disrespectful and refused to listen; did not have time to work on his case; failed to investigate defendant's proposed witnesses or have the drugs allegedly found on defendant analyzed; failed to provide him with "paperwork" from his "strike review" or preliminary hearing; and told the prosecutor defendant "would take anything but a life sentence." Defendant told the trial court this was "a simple drug case that might be a possession case, if [Jimenez] does his job correctly. Maybe I can get a drug program . . . ."
Jimenez responded that he had been in trial on another case for the past three and one half weeks and did not have time to work on defendant's case during that time. Jimenez had drafted a Romero*fn4 motion seeking to vacate defendant's prior strike convictions but had not yet filed it because he wanted to review reports concerning defendant's prior convictions to determine if there were any mitigating factors. Jimenez had recently received those reports but had not had time to review them because he had been in trial. Jimenez characterized defendant's expectations regarding the case as "unrealistic." Jimenez advised defendant that given the severity of his prior convictions, it was unlikely the court would strike them. Jimenez also told defendant that getting a drug program was not a realistic possibility. As for the paperwork defendant requested, Jimenez explained that the strike review is an "informal process that the district attorney's office has" and that there is no paperwork. Jimenez also stated that he would be happy to provide defendant with a copy of the preliminary hearing transcript if defendant did not already have one. With respect to a possible resolution of the case, Jimenez explained that the prosecutor had sent him an email asking to "discuss resolution," and he responded, "My client will consider anything that doesn't involve 25 to life." In Jimenez's experience, deputy district attorneys, including the prosecutor in this case, generally lack the "authority to realistically negotiate," thus he did not take the message to mean much. Indeed, the prosecutor responded, "Yeah, it's 25 to life. It has to be." Jimenez did not believe that his relationship with defendant had broken down such that he could not effectively assist defendant. Rather, he stated that if defendant "gives me an opportunity to do my job, I will do it."
The trial court denied the Marsden motion. It found Jimenez had responded to most of defendant's complaints, and while there was some dispute over tactics, such decisions rested with counsel.
2. October 13, 2009, Marsden Motion
Three months later, on October 13, 2009, defendant again requested the court remove Jimenez and appoint new counsel. Defendant complained that Jimenez waived time without defendant's permission; had yet to file or provide him with a copy of the Romero motion; and had yet to interview defendant's proposed witnesses "Michelle" and "Tiffany." Defendant also claimed that Jimenez had provided him with conflicting information. In particular, defendant asserted that when he first met Jimenez, Jimenez told him, "I can get the marijuana case dismissed, but you're looking at . . . the [E]cstasy case doubled up, with a year prison prior. That's the most you're looking at. I can get the strike struck." Later, however, he told defendant he could no longer get him seven years. Rather, he said defendant was looking at 25 to life.
Jimenez responded that he had "thoroughly investigated this case to the extent that [he] believe[d] it's pertinent." He explained that defendant's proposed witnesses were people whose texts, which were suggestive of drug transactions, were found on the cell phone recovered from defendant. While Jimenez questioned whether they would make good witnesses, his investigator was attempting to locate them. He also explained that the timing of the Romero motion was a strategic decision to be made by counsel. As for the waiver of time, he stated that he never had the trial date reset or waived time without defendant's consent. Finally, with respect to a possible plea, he indicated that "the offer from day one in this case has been 25 to life," and that he had suggested to defendant that a reasonable counter-offer would be to offer "to plead upper term to the charges . . ., if they are striking two of the strikes. And then in addition to that, have them amend to include a three-year drug sale prior. And that would get us approximately 11 or 12 years." Defendant rejected this suggestion and instructed Jimenez to tell the prosecutor he would take a year in county jail and a drug program. Although Jimenez believed that was "completely far-fetched and an impossibility," he did discuss it with the prosecutor. Jimenez denied telling defendant he could get him seven years.
The trial court denied the Marsden motion, concluding there was nothing to indicate Jimenez was ineffectively defending defendant, and that there were no irreconcilable differences that precluded Jimenez from effectively representing defendant.
3. November 9, 2009, Marsden Hearing
One month later, on November 9, 2009, defendant again asked the court to remove Jimenez and appoint new counsel. Defendant claimed Jimenez lied to the court during the first Marsden hearing by stating that defendant had "sold drugs to an undercover officer" in an attempt to discredit him; waived time without defendant's consent; refused to answer defendant's questions; walked out of meetings with defendant; had yet to file a Romero motion; drafted a Romero motion that omitted important facts; said it was not his job to determine whether the patrol car in which defendant was alleged to have made various inculpatory statements contained any audio or video recording devices; and asked defendant to allow him to make a plea offer for something defendant did not do.
Jimenez responded that the last few times he had spoken to defendant they were unable to discuss anything of substance because defendant spent the entire conversation complaining about what Jimenez had not done on defendant's behalf. Jimenez denied telling the court defendant sold drugs to an undercover agent. He had not yet filed the Romero motion for tactical reasons, explaining that "who hears the motion is very important." With respect to the possible existence of audio or video tapes, Jimenez explained that while he did not believe they existed, he had requested any such tapes and had not received anything in response. Jimenez believed defendant was being "incredibly unreasonable about his situation" given defendant's prior convictions and the fact he possessed  Ecstasy pills and a small amount of marijuana divided into individual baggies at the time of his arrest. Jimenez asked defendant to waive time so that he could get the police reports concerning the prior convictions. Unfortunately, those reports showed that the prior convictions involved gangs and guns and contained no evidence of mitigation. Jimenez agreed that there had been an irremediable breakdown in communication insofar as he could no longer speak to defendant about the case without defendant complaining about his performance.
The trial court denied the Marsden motion. While it did not know whether there had been an irremediable breakdown in communication, it found that Jimenez had responded to defendant's complaints, had not acted inappropriately, and had defendant's best interests at heart. The court noted that there was no reason defendant and Jimenez could not discuss what needed to be discussed, and to the extent there had been a breakdown in communication, the court suggested defendant focus his conversations with Jimenez on the case and not on what he thought Jimenez should have done.
4. March 30, 2010, Marsden Motion
On March 30, 2010, the date trial was set to commence, defendant again asked the court to remove Jimenez and appoint new counsel. Defendant complained that Jimenez failed to send an investigator to talk to witnesses who would testify that they got high with defendant but that defendant was not a drug seller; did not have a strategy for defendant's case; and had yet to file a Romero motion or do anything to defend the case. ...