Filed 12/30/14 P. v. McCaw CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL GARRETT MCCAW,

Defendant and Appellant.

 B253066

 (Los Angeles County Super. Ct. 

 No. GA082595)

APPEAL from a judgment of the Superior Court of Los Angeles County, Jared 

Moses, Judge. Affirmed in part and reversed in part.

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney 

General, Steven E. Mercer, Deputy Attorney General, and Marc A. Kohm, Deputy 

Attorney General, for Plaintiff and Respondent.

_____________________________
2

In a prior appeal, this court affirmed the conviction of defendant and appellant 

Michael Garrett McCaw, but reversed findings that his 1999 conviction in New York for 

attempted third degree robbery was a prior serious felony conviction and a prior 

conviction under the three strikes law. (People v. McCaw (Jan. 9, 2013, B236754) 

[nonpub. opn.].) On remand, the trial court again found the prior convictions allegations 

true, findings defendant challenges on appeal. Defendant further contends that the court 

violated his constitutional rights by failing to hold a hearing pursuant to People v. 

Marsden (1970) 2 Cal.3d 118 (Marsden), improperly conducting a later-requested 

Marsden hearing, and denying his request for substitute counsel. We again find the 

evidence insufficient to support the recidivism findings and reverse that portion of the 

judgment. We remand to allow the prosecution the opportunity to pursue a limited retrial 

concerning the allegations if additional evidence is available. In all other respects, the 

judgment is affirmed. 

PROCEDURAL BACKGROUND

The jury found defendant guilty of attempted voluntary manslaughter (Pen. Code, 

§§ 192, 664),

1 and found true the allegations that defendant used a deadly weapon (§ 

12022, subd. (b)(1)) and inflicted great bodily injury (§12022.7, subd. (a)). In a 

bifurcated proceeding, the trial court found that defendant had suffered a prior strike 

under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a prior 

serious felony conviction (§ 667, subd. (a)), based on a 1999 conviction for attempted 

third degree robbery in New York. It also found that defendant had served a prior prison 

term (§ 667.5, subd. (b)). 

The trial court sentenced defendant to 21 years in state prison. It imposed the high 

term of five and a half years, doubled to eleven years under the three strikes law. The 

trial court imposed an additional year for use of a deadly weapon, three years for 

 

1 Unless otherwise indicated, all statutory references are to the Penal Code.
3

inflicting great bodily injury, five years for the prior serious felony conviction, and one 

year for the prior prison term. 

Defendant argued in his prior appeal that there was insufficient evidence that his 

1999 New York conviction for third degree attempted robbery, resulting from his guilty 

plea, constituted a prior serious felony conviction or strike for purposes of imposing 

sentencing enhancements under section 667, subdivision (a) and the three strikes law, 

because the appellate record failed to establish that the New York conviction contained 

all the elements of attempted robbery under California law. The Attorney General 

conceded the insufficiency of the evidence. We agreed the evidence was insufficient, 

because robbery under California law requires that property be “taken from the other 

person or (his/her) immediate presence” (CALCRIM No. 1600), whereas under New 

York law it is not required that the person robbed be in equally close physical proximity 

to the stolen property. Because the record did not show that the New York conviction 

involved conduct satisfying all the elements of the comparable California statute, we 

reversed and remanded for a limited retrial of the prior conviction allegations. We 

affirmed the judgment in all other respects.

RETRIAL OF RECIDIVISM ALLEGATIONS

The prosecution presented evidence that had been introduced in the original trial 

of the prior conviction allegations. This evidence included the following documents: a 

section 969b packet from the California Department of Corrections and Rehabilitation; a 

subpoena duces tecum and a certified copy of a Criminal History Record Information 

report from the New York State Division of Criminal Justice Services; and two jury 

instructions, one entitled “Introductory Charge to Robbery” and the other “Robbery Third 

Degree.” The Criminal History Record Information report states that defendant was 

convicted upon a plea of guilty to third degree criminal possession of a loaded firearm 
4

(N.Y. Pen. Law, § 265.02, subd. (4)),2 and third degree attempted robbery (N.Y. Pen.

Law, § 160.05). 

As additional proof of the prior convictions, the prosecution presented an affidavit 

by a Court Clerk Specialist, accompanied by records identified in the affidavit as 

“complaint, indictment, sentence and commitment, worksheet, action sheet and criminal 

court folder back. Certificate of Disposition.” Exhibit No. 4 includes a document that 

lists the offenses with which defendant was charged, specifically, one count of first 

degree attempted robbery (N.Y. Pen. Law, § 110 / 160.15, subd. 2), one count of third 

degree criminal possession of a weapon (N.Y. Pen. Law, § 265.02, subd. (3)), one count 

of third degree criminal possession of a weapon (N.Y. Pen. Law, § 265.02, subd. (4)), 

and misdemeanor resisting arrest (N.Y. Pen. Law, § 205.30). The document also 

includes a signed statement by Michele Jaworski, which states, in relevant part, that on or 

about November 3, 1997, “defendant did point a silver revolver at deponent and did state 

in sum and substance WE’RE GONNA’ DO THIS MY WAY and that when deponent 

did tell defendant that a police officer was nearby, defendant did grab deponent’s purse 

and did attempt to take it from her.” Exhibit No. 4 also includes a notation from the 

Custodian of Records of the Supreme Court of New York, Bronx County, that the 

following records are not contained in the court’s files: plea transcripts, the plea 

agreement, grand jury transcripts, the probation report, pre-plea reports, and court 

dockets. 

At the retrial on the recidivism allegations, defense counsel argued that Jaworski’s 

statement appeared to be a statement to provide probable cause for arrest, and that by 

itself, it was insufficient evidence for the court to rely upon when considering whether 

the elements of attempted robbery in California were met. Defendant was not convicted 

of attempted first degree robbery, as alleged in the document; he pled guilty to third 

degree attempted robbery. This would leave the court with only the elements of 

attempted third degree robbery to consider. Third degree robbery in New York does not 

 

2 This subdivision of New York Penal Code section 265.02 was repealed in 2006. 
5

require that the victim be present, and therefore could not qualify as a serious or 

dangerous felony under California law, which requires that the victim be present. 

Defense counsel illustrated his point:

“...[I]n a situation where there’s a burglary. And you have information within the 

police reports, the documentation, the indictment that in fact a burglary was committed. 

But, at the time of sentencing, he were to plead to a receiving stolen property. [¶] The 

court cannot then go back and review all those documents and say, hey, I believe this was 

a . . . burglary, although he had pled to a receiving stolen property. I mean, the court is 

bound to what [defendant] pled to.” 

The trial court agreed that in the proposed scenario, the evidence would be 

insufficient because receiving stolen property is not a strike offense in California, but that 

defendant’s case was distinguishable because attempted robbery is a strike offense. 

Because attempted robbery is a strike offense in California, the court was required to look 

at the actual conduct and determine whether it satisfied the elements of robbery as set 

forth in California. 

Defense counsel argued that if one looked at the elements of attempted third 

degree robbery adjudicated in New York, there was insufficient evidence to show that the 

elements met the California requirements. The document containing Jaworski’s 

statement referred to attempted first degree robbery, not attempted third degree robbery, 

the offense pled. The element of taking from another person’s possession and immediate 

presence was not established by the documents in the record. 

The prosecution countered that, in People v. Guerrero (1988) 44 Cal.3d 343, 355

(Guerrero), it was established that the court could consider the entire record of 

conviction, including the allegations, accusatory pleading, and the defendant’s guilty 

plea, and that there was evidence in the record of conviction to establish the element of 

taking from another person’s possession and immediate presence. 

The court found that the document containing Jaworski’s statement appeared to be 

“in the form of a charging document” with the signed affidavit of the victim. It noted that 
6

the document was file stamped with the case number. The trial court again found the 

prior conviction allegations true, stating: 

“I do find beyond a reasonable doubt based upon . . . the records that I reviewed as 

finder of fact that the prior attempted robbery conviction in New York State is a strike 

under California three strikes law as the conduct as set forth in the charging document by 

Miss Jaworski clearly indicates all the elements of a California attempted robbery.

“It’s with a person present, and then the defendant approaches with a firearm, 

makes a statement about ‘now we do it my way,’ grabs her purse, attempts to take the 

purse from her person forcibly, and then, at some point, she says there is a police officer 

nearby and he takes off running.

“So, based upon that, it is clear to me that this is an attempted robbery within the 

meaning of the California three strikes law. And, therefore, I find it true beyond a 

reasonable doubt, both as a strike and as a [section] 667[, subdivision] (a) prior as well.” 

The trial court again imposed the sentence of 21 years in state prison on November 

4, 2013. Defendant timely appealed.

DISCUSSION

Prior Conviction Allegations

Defendant contends there is insufficient evidence that his New York attempted 

robbery conviction qualifies as a serious felony or a strike for purposes of the California 

sentencing enhancements. He first argues that Descamps v. United States (2013) __ U.S. 

__ [133 S.Ct. 2276] (Descamps), which the high court decided subsequent to our remand, 

prohibits the trial court from examination of the entire record of conviction in this 

instance, repudiating our Supreme Court’s prior decisions in Guerrero, supra, 44 Cal.3d 

343 and its progeny. Alternatively, defendant asserts that even under current California 

law, the evidence was insufficient to support the sentence enhancements. The Attorney 

General disagrees, arguing that California’s jurisprudence is unaffected by Descamps. 
7

As we discuss below, there was insufficient evidence to support the conclusion that 

defendant’s New York conviction for third degree attempted robbery constituted a strike 

and a serious felony under California law. We therefore do not consider the question of 

Descamp’s effect on our state’s law. 

Insufficient Evidence

“[T]he Due Process Clause protects the accused against conviction except upon 

proof beyond a reasonable doubt of every fact necessary to constitute the crime with 

which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.) Each element of a 

sentencing enhancement must also be proven beyond a reasonable doubt. (People v. 

Tenner (1993) 6 Cal.4th 559, 566.) Where the defendant claims that the evidence was 

insufficient to sustain a finding that the prosecution has proven all elements of an 

enhancement, this court reviews the trial court’s finding for substantial evidence. (People 

v. Rodriguez (2004) 122 Cal.App.4th 121, 129.) “In making this determination, we 

review the record in the light most favorable to the trial court’s findings.” (Ibid.)

Section 667, subdivision (a) requires that a five-year sentence be imposed for each 

prior conviction for “any offense committed in another jurisdiction which includes all of 

the elements of any serious felony” under California law. “To qualify as a serious felony, 

a conviction from another jurisdiction must involve conduct that would qualify as a 

serious felony in California.” (People v. Avery (2002) 27 Cal.4th 49, 53; see § 1170.12, 

subd. (b)(2); see also § 667.5, subd. (f).) 

Both robbery and attempted robbery are strike offenses under California law. (§§ 

1170.12, subd. (b)(1), 1192.7, subds. (c)(19), (c)(39).) However, California and New 

York define robbery differently. In California, “[r]obbery is the felonious taking of 

personal property in the possession of another, from his [or her] person or immediate 

presence, and against his [or her] will, accomplished by means of force or fear.” (§ 211.) 

Thus, robbery is a form of aggravated larceny in which “the elements of larceny are 

intertwined with the aggravating elements to make up the more serious offense.” (People 
8

v. Gomez (2008) 43 Cal.4th 249, 254.) “To elevate larceny to robbery, the taking must be 

accomplished by force or fear and the property must be taken from the victim or in his [or 

her] presence.” (Id. at p. 254, fn. omitted.)

In New York, robbery is defined as “forcible stealing.” (N.Y. Pen. Law, § 

160.00.) “A person forcibly steals property and commits robbery when, in the course of 

committing a larceny, he uses or threatens the immediate use of physical force upon 

another person for the purpose of: [¶] 1. Preventing or overcoming resistance to the 

taking of the property or to the retention thereof immediately after the taking; or [¶] 2. 

Compelling the owner of such property or another person to deliver up the property or to 

engage in other conduct which aids in the commission of the larceny.” (Ibid.) The 

practice commentary following this provision points out that, unlike the California 

robbery statute, there is “no requirement that the defendant take the property ‘from the 

person or in the presence of another,’ as was required under the former [New York] Penal 

Law [§ 2120]. Accordingly, a culprit who meets his [or her] victim a few blocks from 

the victim’s store, knocks the victim unconscious, and then enters the victim’s store and 

steals property from the store may be guilty of robbery; similarly, a culprit who forces a 

bank president to telephone his bank to direct an employee to take money from the safe 

and give it to an accomplice may be guilty of robbery.” (Prac. Com. foll. N.Y. Pen. Law, 

§ 160.00; see also People v. Smith (1992) 79 N.Y.2d 309, 314 [“the Commission 

determined that the proposed robbery statute was deficient in that it . . . contained a ‘from 

the person or in the presence of’ limitation which would exclude a variety of forcible 

thefts that were ‘robberies in spirit’”].)

Due to the differences between the California and New York definitions of 

robbery, defendant’s attempted robbery conviction in New York is a strike in California 

only if the record shows that defendant specifically intended to take property from the 

victim or in her presence and took a direct but ineffectual step toward doing so. (See 

People v. Medina (2007) 41 Cal.4th 685, 682 [“[a]n attempted robbery requires a specific 

intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward 

its commission”].) We must presume the prior offense was for the least offense 
9

punishable if the record is devoid of evidence regarding the facts of the crime committed. 

(People v. Zangari (2001) 89 Cal.App.4th 1436, 1440.)

Analysis Under the Scope of Review Permitted by California Law

“With regard to . . . the nature of the inquiry required (and permitted) in this 

context under California law . . . we observe that the matter presented is not, as the Court 

of Appeal appears to have assumed, a determination or finding ‘about the [defendant's 

earlier] conduct itself, such as the intent with which a defendant acted.’ Instead, it is a 

determination regarding the nature or basis of the defendant’s prior conviction—

specifically, whether that conviction qualified as a conviction of a serious felony. 

California law specifies that in making this determination, the inquiry is a limited one and 

must be based upon the record of the prior criminal proceeding, with a focus on the 

elements of the offense of which the defendant was convicted. If the enumeration of the 

elements of the offense does not resolve the issue, an examination of the record of the 

earlier criminal proceeding is required in order to ascertain whether that record reveals 

whether the conviction realistically may have been based on conduct that would not 

constitute a serious felony under California law. (See, e.g., People v. Woodell [(1998)] 

17 Cal.4th 448, 452-461.) The need for such an inquiry does not contemplate that the 

court will make an independent determination regarding a disputed issue of fact relating 

to the defendant’s prior conduct (see id. at p. 460), but instead that the court simply will 

examine the record of the prior proceeding to determine whether that record is sufficient 

to demonstrate that the conviction is of the type that subjects the defendant to increased 

punishment under California law. This is an inquiry that is quite different from the 

resolution of the issues submitted to a jury, and is one more typically and appropriately 

undertaken by a court.” (People v. McGee (2006) 38 Cal.4th 682, 706 (McGee).)

Because the definition of robbery under California and New York law differs, the 

“the enumeration of the elements of the offense does not resolve the issue,” so the 

pertinent inquiry requires this court to “examine the record of the prior proceeding to 
10

determine whether that record is sufficient to demonstrate that the conviction is of the 

type that subjects the defendant to increased punishment under California law.” (McGee, 

supra, 38 Cal.4th at p. 706.) As our Supreme Court has held, this inquiry is narrowly 

limited “only to those record documents reliably reflecting the facts of the offense for 

which the defendant was convicted.” (People v. Trujillo (2006) 40 Cal.4th 165, 177

(Trujillo), internal quotations omitted, quoting People v. Reed (1996) 13 Cal.4th 217, 223 

(Reed).) Reed held that the reporter’s transcript of a preliminary hearing is a part of the 

record which could be used to demonstrate the basis for a conviction, but only “because 

the procedural protections afforded the defendant during a preliminary hearing tend to 

ensure the reliability of such evidence. Those protections include the right to confront 

and cross-examine witnesses and the requirement those witnesses testify under oath, 

coupled with the accuracy afforded by the court reporter’s verbatim reporting of the 

proceedings. [Citation.]” (Trujillo, supra, at p. 177.) Trujillo held that a defendant’s 

statement in a postconviction probation report was not reliably reflecting the facts of the 

defendant’s offense. (Id. at p. 179.)

The only indication of a potential factual basis for defendant’s 1999 New York 

conviction of third degree attempted robbery is found in Jaworski’s statement that 

“defendant did point a silver revolver at deponent and did state in sum and substance 

WE’RE GONNA’ DO THIS MY WAY and that when deponent did tell defendant that a 

police officer was nearby, defendant did grab deponent’s purse and did attempt to take it 

from her.” It appears that this statement was the basis for reference of the case to the 

grand jury, which ultimately indicted defendant for a variety of offenses including 

attempted first degree robbery. We hold this statement is insufficient under California 

law to demonstrate the basis for defendant’s New York conviction under the 

circumstances of this case.

Jaworski’s statement lacks important attributes of a preliminary hearing transcript. 

Although her statement appears to have been made under the penalty of perjury, it was 

not the product of confrontation or cross examination, nor was it contained in a court 

reporter’s verbatim reporting of the statement. (See Trujillo, supra, 40 Cal.4th at p. 177.) 
11

We have serious doubt that Jaworski was the only source for the statement, as it contains 

language one would not expect a crime victim to use in reporting an offense, such as 

referring to herself as “deponent.” 

Fatal to the findings of the trial court is the absence of competent evidence 

demonstrating what conduct served as the basis for defendant’s New York conviction. 

While he was charged with first degree attempted robbery, defendant pled not guilty to 

that charge, and the case was resolved by guilty plea to third degree attempted robbery, 

which is a different offense. New York authorities were unable to locate either a grand 

jury transcript or a transcript of defendant’s guilty plea. Without the plea colloquy, there 

is no way to determine if defendant’s New York conviction was resolved on the basis of 

conduct that would constitute a serious felony and a prior conviction under the three 

strikes law under California law. All that remains to evaluate are the elements of the 

crime to which defendant pled guilty. Those elements do not demonstrate that 

defendant’s prior conviction is a serious felony or strike within the meaning of section 

667, subdivision (a) and the three strikes law. Finally, contrary to the Attorney General’s 

assertions, defendant’s guilty plea to third degree criminal possession of a loaded firearm 

(N.Y. Pen. Law, § 265.02, subd. (4)) is not an implied admission that he attempted to 

take property from another person’s possession and immediate presence. Possession of a 

weapon does not require use or close proximity to the victim. (N.Y. Pen. Law, § 265.02, 

subd. (4), enacted by L. 1998, c. 378, § 3, eff. Nov. 1, 1998.)

Marsden Motion

Defendant also contends that the sentencing court violated his constitutional rights 

by failing to hold a hearing pursuant to Marsden, supra, 2 Cal.3d 118, improperly 

conducting a later-requested Marsden hearing, and denying his request for substitute 

counsel. His contentions lack merit.

Defendant addressed the court at retrial on September 26, 2013:
12

“Defendant: Yeah. I haven’t spoke to my attorney at all till this week. You 

know, he’s letting me know that he has a written response. We haven’t been able to talk 

at all what the arguments were that we were having before because he’s never come to 

see me until a couple weeks -- a couple days ago.

“He’s not prepared for this, your honor. He has no defense. He has no 

information. On top of that, the paperwork that was subpoenaed from New York, we 

didn’t even get that until now. So when I got the copy that he gave me, it was noted that 

it’s 15 pages from New York. I only had 12. He said, that’s what the D.A. gave me.

“He is totally unprepared. And this is -- I mean, this is, you know, I mean, this is a 

violation of my due process because he has no idea what’s going on.

“The Court: I would indicate that, number one, we already tried this priors trial 

once. It was tried on the New York state priors before. No surprise. We have one set of 

new documents that [the prosecution] tendered to the court last time that were produced 

and given to the defense.

“[The prosecution]: That was the date that Mr. Keeland stood in for me, which 

was August 15th.

“The Court: All right. So those documents were provided to the defense almost a 

month and a half ago. 

“And I’m not -- I would note that last time we were here [on September 12, 2013], 

there was some significant breaks we took to allow [defense counsel] and [defendant] to 

speak. He spoke with him here in court as well as in lock-up and I took a break to enable 

that conversation to occur.”

At resentencing, defendant moved to represent himself. The trial court noted that 

defense counsel represented defendant for approximately two years, through a jury trial, 

appeal, and the retrial of the prior allegations, and denied the request as untimely. 

Defendant stated that his attorney failed to conduct a pretrial investigation. The 

trial court responded: “That’s not what we’re here to talk about. You brought your 

Faretta [v. California (1975) 422 U.S. 806] motion. I have denied it as untimely. We’re 
13

not going to address that . . . . [¶] [¶] If you want to make a statement to me about why I 

should reduce the sentence that I gave you last time . . . you’re welcome to do that.” 

Defendant then asserted that “that complaint was false.” The trial court reiterated 

that the hearing was for resentencing only, and that defendant could make a statement 

regarding his sentence. Defendant responded: “This man has not represented me . . . . 

[¶] I’ve continually tried to -- [¶] -- tell you, talk to the court, and you stopped me from 

talking to you and said ‘speak to your lawyer.’ [¶] Now, I haven’t been able to do that 

because he’s not doing his job. [¶] [¶] [¶] -- and I asked to go pro per.” The court 

responded that it appeared defendant was bringing a Marsden motion. The court 

confirmed that defendant wanted new counsel, and promptly held a Marsden hearing.

At the Marsden hearing, defendant complained that counsel did not do any pretrial 

investigation or meet with him as promised, waived time repeatedly because he had no 

information on the case, and refused to file a new trial motion. The sentencing court 

questioned defense counsel as to how long he had been an attorney, how many cases he 

had tried, how long he had represented defendant, how many times he met with 

defendant, and whether he had all of the documents in the case. Defense counsel 

confirmed that he had been practicing for 20 years, tried over 250 cases, represented 

defendant for two years, and had received all the documentation relevant to the case a 

month or two prior to retrial. The sentencing court noted that there had been a request for 

a continuance so that defense counsel could obtain the New York police report, but that 

the request had been denied because it could not be considered as part of the record of 

conviction. Defense counsel addressed the court. He stated that he had told defendant 

that he pled guilty to a grand jury indictment in the prior case and could not argue that he 

did not rob the victim. He explained to defendant that what the police report contained 

was inadmissible, and that there was not much they could do. The court denied the 

Marsden motion.

“[C]riminal defendants are entitled under the Constitution to the assistance of 

court-appointed counsel if they are unable to employ private counsel.” (Marsden, supra, 

2 Cal.3d at p. 123, citing Gideon v. Wainwright (1963) 372 U.S. 335.) “When a 
14

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.” (People v. Crandell (1988) 46 Cal.3d 833, 854, overruled on other 

grounds in People v. Craytor (2002) 28 Cal.4th 346, 364-365; see Marsden, supra, at p. 

123.) “‘[A] trial court’s duty to permit a defendant to state his reasons for dissatisfaction 

with his attorney arises when the defendant in some manner moves to discharge his 

current counsel.’ [Citation.] [Such a request does] ‘not necessarily require a proper and 

formal legal motion, but at least some clear indication by defendant that he wants a 

substitute attorney.’ [Citation.]” (People v. Sanchez (2011) 53 Cal.4th 80, 87-88 

(Sanchez), italics omitted.) “‘[T]he decision whether to permit a defendant to discharge 

his appointed counsel and substitute another attorney during the trial is within the 

discretion of the trial court,’ . . . ‘a defendant has no absolute right to more than one 

appointed attorney,’ and . . . a trial court is not bound to accede to a request for substitute 

counsel unless the defendant makes a ‘“‘sufficient showing . . . that the right to the 

assistance of counsel would be substantially impaired’”’ if the original attorney continued 

to represent the defendant. (Marsden, [supra,] at p. 123.)” (Sanchez, supra, at p. 87.)

Defendant’s first statements to the court on September 26, 2013, did not clearly 

indicate a desire for new counsel. Defendant complained that defense counsel did not 

have all the relevant documents and that they had not communicated until a few days 

before the retrial. The court pointed out that both statements were inaccurate. Defense 

counsel possessed all the relevant documents, and defense counsel had a lengthy meeting 

with defendant prior to the September 12, 2013 hearing, and a second conference during 

the hearing when the court paused proceedings for them to speak again. Defendant’s 

statements indicate that defendant wanted to ascertain whether counsel had all the 

documents, and have an opportunity to speak with his attorney. The court responded 

appropriately, by confirming that defense counsel had all the documents, and pointing out 

to defendant that he had, in fact, opportunities to meet with counsel more than a week 

prior to the hearing. Defendant made no further complaints that day. 
15

On November 4, 2013, defendant moved to represent himself, and began to 

complain about his attorney’s performance when the motion was denied as untimely. 

The court interpreted his statements as a request for a Marsden hearing, and immediately 

held one. Defendant was given the opportunity to fully express his concerns. He 

complained of counsel’s failure to conduct pretrial investigation, failure to meet with 

him, repeated waiver of time, and refusal to file a new trial motion. The court questioned 

defense counsel thoroughly regarding these issues, confirming that he fully investigated 

the case, had all of the relevant documents, met with defendant on several occasions, 

requested a continuance appropriately, and made a reasonable tactical decision with 

respect to the refusal to file a motion for new trial. Under these circumstances, we cannot 

conclude that the court abused its discretion in conducting the hearing or denying 

defendant’s request for new counsel.
16

DISPOSITION

The findings that defendant had been previously convicted of a serious felony and 

a strike under the three strikes laws are reversed. The cause is remanded for limited 

retrial concerning the prior conviction allegations. If the prosecution cannot proceed in a 

new trial on the prior conviction allegations, the court shall resentence defendant based 

upon all remaining charges and allegations. In all other respects, the judgment is 

affirmed. 

KRIEGLER, J. 

We concur: 

TURNER, P. J.

GOODMAN, J. *

 

*

Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.