Filed 5/6/15 P. v. Hemphill CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. CURTIS ALLEN HEMPHILL, Defendant and Appellant. H040140 (Monterey County Super. Ct. No. SS091035A)

Defendant Curtis Allen Hemphill is an inma te at Salinas Valley State Prison. In November 2007, his cellmate, Louis Singlet on, was found lying pr one on the cell floor that he shared with defendant. Singleton was pronounced dead and an autopsy showed strangulation as the cause. Following a jury tr ial, defendant was convicted of voluntary manslaughter (Pen. Code, § 192, subd. (a)) 1 and was sentenced to a term of 33 years in prison. On appeal, his counsel has filed an opening brief in which no issues are raised and asks this court for an independent re view of the record as required by People v

. Wende (1979) 25 Cal.3d 436. Counsel has declar ed defendant was notified an independent
review under Wende was being requested. We advised defendant of his right to submit written argument on his own behalf within 30 days. Defendant has submitted a letter brief requesting appointment of coun sel and raising numerous issues.

1 Further unspecified statutory re ferences are to the Penal Code.2 Pursuant to Wende , we have reviewed the entire re cord and have concluded that there are no arguable issues. We will prov ide “a brief description of the facts and procedural history of the case, the crimes of which defendant was convicted, and the punishment imposed.” ( People v

. Kelly (2006) 40 Cal.4th 106, 110.) Pursuant to Kelly , we will consider defendant’s letter brief and will explain why we reject his contentions. ( Id . at p. 113.)
F ACTUAL AND P ROCEDURAL B ACKGROUND Procedural History On March 26, 2009, the Monterey Coun ty district attorney’s office filed a complaint charging defendant with first degree murder (§ 187, subd. (a)). It was also alleged that defendant had a prior serious or violent felony conviction under section 1170.12, subdivision (c)(1).
Defendant’s trial counsel filed a motion to exclude evidence of uncharged bad acts
under Evidence Code sections 11 01 and 352. He also filed a motion to bifurcate the trial of the sentencing enhancement from the substantive charge a nd a motion to strike all of defendant’s prior convictions. Later, defendant waived his right to a jury trial on his prior convictions. On September 28, 2011, the trial court held a hearing on defendant’s motion to strike all of his prior convictions. Defe ndant’s counsel argued the motion should be granted, because defendant did not validly waiv e his right to counsel in his prior case, the prior court failed to provide defendant with legal representation, and that defendant’s guilty plea was obtained through fraud or co ercion. The court denied the motion. Trial began on February 27, 2012. Th e court granted defendant’s motion to bifurcate the jury trial on hi s prior convictions. The cour t also granted defendant’s motion in limine to prohibit the prosecutio n from introducing evidence of his alleged priors. However, the prosecu tion would be able to us e the alleged priors for impeachment purposes if defendant testified.3 The Prosecution ’ s Case On November 27, 2007, Sa muel Barrera, a correctional officer at the Salinas Valley State Prison, conducted a security chec k. Barrera observed that defendant and his cellmate, Singleton, were present in their cell th at night. The men we re locked into their room at approximately 10:15 p.m. The next morning, Barrera disc overed Singleton lying on the cell floor. Defendant was standing in th e back of the cell and was escorted out by
another correctional officer. Singleton was not breathing and was unresponsive. Mar quita Alton, a registered nurse, intervened and began administering medi cal care to Singleton. Alton assessed that Singleton did not have a pulse, but his body was still warm. Singleton was pronounced dead that morning at 6:02 a.m. Correctional officer Manual Mendoza phot ographed defendant that morning. Primarily, Mendoza did not see many visible injuries on defendant. However, he did observe and photograph a “redness” or brui sing on defendant’s in ner left bicep.
Defendant also had a scratch on his left armpit area. Correctional officer Christopher Wilson was present while Singleton was being photographed. Photographs showed an injury to the skin on the in side of Singleton’s right kneecap and scuff marks on the t op of his toes on his left foot. Dr. John Hain, a forensic pathologist contracted by Monterey County, performed an autopsy on Singleton. Hain determined Singleton died from asphyxia due to strangulation, and the manner of death was homicide. Hain explained that it takes a minimum of three to four minutes to strangl e someone to death. During that time, the victim would likely be conscious for a minimu m of 10 seconds. Ha in opined that the injuries to Singleton’s knees could be consis tent with him being on his knees at the time he was strangled. Hain believed Singleton’s injuries were also consistent with being pushed against an arm or another object.4 The Defense Case
Defendant testified on his own behalf. He had been in custody before at the Riverside County Jail, where he developed a fear for his own persona l safety. Defendant
said a correctional officer at the jail told him he would not need to worry about going to trial, because he would be dead before then. That same nigh t, a group of inmates brutally beat the man that was supposed to be defend ant’s cellmate. Defendant said he and his potential cellmate were the only tw o African American men at th e jail at the time. Later,
one of defendant’s cellmates hit him in the eye while he was incarcer ated at the county jail. This caused defendant to suffer from light sensitivity, migraines, and blindness in that eye. Defendant had been assaulted approximately six other times while in custody. He
recounted several of the trauma tic events during the trial. Defendant recalled an incident
at the California Correctional Institute in Tehachapi where he was assaulted by his
cellmate. He also recalled incidents that to ok place in another facility in Lancaster.
Defendant believed some of these assaults were set up by the prison guards. Defendant testified that his experiences in prison made him fear for his life. He had lasting injuries from the attacks. Defendant first met Singleton when he was in custody in Tehachapi in 2005. At that time, Singleton had never threatened hi m specifically. However, Singleton had said he was going to start a race wa r, which would ha ve involved defendant. Defendant knew of Singleton’s prior history of violence. Defendant said Singleton threatened hi m when they first became cellmates. Defendant convinced Singleton not to attack him. However, defendant believed it was only a matter of time before Singleton would become violent. At one point, defendant had written to his brother, expressing the belief that he was going to die. The night Singleton was killed, he wanted to take one of defendant’s last Top Ramen soups. Defendant had been giving Singleton food to appease him all week.5 Defendant told him to put the soup back, an d Singleton responded that he would do what he wanted to do. Singleton came at defendant and tried to hit him. Defendant said he was terrified, and so he just grabbed Singleton. Defendant said he felt that seconds, not minutes, passed. He grabbed Si ngleton by his shirt and protec ted himself, trying to stop Singleton from killing him. De fendant was not clear about what exactly transpired, just that he and Singleton were gr abbing each other. He said he was choking Singleton with his own shirt, but he may have also been appl ying pressure to Singlet on with his arm. The Verdict and Sentencing On March 8, 2012, the jury found defendant not guilty of first degree murder (§§ 187, subd. (a), 189) and of second degree murd er (§§ 187, subd. (a), 189). However, the jury found defendant guilty of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)). The trial court fou nd his prior conviction to be true. The following week, defendant filed a Romero 2 motion requesting the court dismiss his prior convictions under secti on 1385, which the People opposed. On May 15, 2012, defendant filed a mo tion for a new trial, arguing his trial
counsel had rendered ineffec tive assistance. The court tr eated the new trial motion as
both a new trial motion a nd a motion pursuant to People v

. Marsden (1970) 2 Cal.3d 118, because defendant had requested appointment of substitute co unsel. After considering the documents submitted by de fendant and the argument prov ided by defendant and his counsel, the trial court denied the motion for a new trial a nd the request for appointment
of counsel. That same day, the trial court sentenced de fendant to an upper term of 11 years in prison, tripled pursuant to section 1170.12, subdivision (c)(2), for a to tal term of 33 years,
to be served consecutive to his current se ntence. Defendant was not given credits, because he was currently serving a prison sent ence. The trial court ordered defendant to

2 People v

. Superior Court ( Romero ) (1996) 13 Cal.4th 497.6 pay a $4,800 restitution fund fine and a matchi ng parole revocation fine. He was also ordered to pay $70 in court assessments. The court specified that restitution to the victim’s family was to be determined.
D ISCUSSION We first address the points raised in de fendant’s supplemental letter brief. Preliminarily, defendant claims that his appellate counsel misled him and rendered
ineffective assistance of counsel. Therefor e, he requests appointment of substitute appellate counsel to assist him in the prep aration of his opening brief. However, his claim of ineffective assistance of appellate counsel references matters and includes documents outside the record on appeal. Ther efore, it is not properly raised here and should instead be raised in a pe tition for writ of habeas corpus. ( People v

. Salcido (2008) 44 Cal.4th 93, 172.) Furthermore, defendant’s appellate counsel filed a Wende brief, declaring that she
reviewed the record and fo und no arguable appellate issu es. Defendant claims, in essence, that appellate counsel failed to pu rsue the arguments he believes she should have pursued. This is not enough to warrant appointment of new appellate counsel. 3 “Although a defense attorney has a duty to adva nce all colorable claims and defenses, the canons or professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer--whether privately retained or publicly appointed--not to clot the courts with frivolous motions or appeals. [A de fendant] has no legitimat e complaint that his lawyer refused to do so.” ( Polk County v

. Dodson (1981) 454 U.S. 312, 323, fn. omitted.)

3 Defendant attaches, as an exhibit to hi s supplemental letter brief, a letter from his trial counsel declaring he sent defendant’s en tire case file to appellate counsel. However, based on this letter, we cannot determine if defendant’s appellate counsel made false representations to defendant th at she did not possess the file, or that she failed to conduct the research necessary in orde r to determine if there were any arguable issues on appeal.7 Next, defendant argues his prior convictio n must be stricken, because he was not properly informed of his constitutional rights. ( People v

. Coffey (1967) 67 Cal.2d 204, 215; People v

. Sumstine (1984) 36 Cal.3d 909.) He also argues his prior conviction was made as a result of coercion and duress, and that the Faretta 4 waiver he gave in his prior case was not knowing and intelligent. Defenda nt raised these arguments below in his motion to strike his prior conviction. The court rejected his claims and denied the motion, a decision we must uphold if it is supported by substa ntial evidence. ( People v

. Pride (1992) 3 Cal.4th 195, 256.) Based on th e record, it appears there was substantial evidence that defendant was properly inform ed of his constitutiona l rights during the proceedings involving his prior conviction. During the prior court hearings, the court advised defendant multiple times of his right to counsel a nd defendant repeatedly asserted he wished to proceed in propria persona. We must therefore upho ld the trial court’s decision denying the motion to strike. Second, defendant argues his trial counse l rendered ineffective assistance. Like his claim that his appellate counsel rendered ineffective assistance, this argument relies on matters outside the appellate record. Therefore, it too shou ld be raised in a petition for writ of habeas corpus, not on appeal. ( People v

. Salcido , supra , 44 Cal.4th at p. 172.) Third, defendant’s claim th at his restitution fine should be reversed due to his indigent status is forfeited for his failure to object at the sentencing hearing when the fine was imposed. ( People v

. Turrin (2009) 176 Cal.App.4th 1200, 1207.) Next, we find no merit in defendant’s claim that his Marsden motions were improperly denied. 5 “The decision to substitute coun sel is within the discretion of the trial court; this court will not find an abuse of discretion unless the trial court’s failure to

4 Faretta v

. California (1975) 422 U.S. 806. 5 In his letter brief, defenda nt does not specify which Marsden motion he believes was erroneously denied. Regardless, we have reviewed the transcripts of the Marsden hearings that took place on February 22, 2012 and on May 15, 2012.8 substitute counsel would ‘ “ ‘substantially im pair’ the defendant’s right to effective assistance of counsel.” ’ ” ( People v

. Gutierrez (2009) 45 Cal.4th 789, 803.) We find the trial court made proper inqu iries and did not abuse its di scretion when it declined to
substitute counsel. Lastly, defendant claims the court erre d in denying his motion for a new trial due
to the ineffective assistance of his trial counsel . Section 1181 sets forth nine grounds for granting a new trial motion. Ineffective assist ance of counsel is not one of them, but the California Supreme Court in People v

. Fosselman (1983) 33 Cal.3d 572, 582 held that a
claim of ineffective assistance can be asserted as a basis for a new trial. A trial court’s ruling on a motion for new trial is re viewed for abuse of discretion. ( People v

. Thompson (2010) 49 Cal.4th 79, 140.) A trial court “ ‘should consider a claim of ineffective
assistance of counsel in a motion for new tr ial . . .’ when the ‘ “issue of counsel’s
effectiveness can be reso lved promptly at the tr ial level” ’ and justice will . . . thereby be expedited.” ( People v

. Carrasco (2014) 59 Cal.4th 924, 981.) However, if justice cannot readily be expedited at the trial court level, the court does not abuse its discretion in denying the new trial motion. ( Ibid .) Based on the record, the court did not ab use its discretion when it denied the new trial motion. Most of defendant’s claims targ eted defense counsel’s choice of tactics, not his performance at trial, and were not the t ype of issue that could be promptly and effectively resolved by the trial court. In addition to the arguments set forth by defendant in his letter brief, we have also conducted an independ ent review of the record pursuant to Wende and Kelly . We
conclude there are no ar guable issues on appeal.
D ISPOSITION The judgment is affirmed.Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.