People v. Jordan CA3 ( 2014 )

Filed 5/15/14 P. v. Jordan 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C071329
v. (Super. Ct. No. 11F02924)
MARV JORDAN,
Defendant and Appellant.
A jury convicted defendant Marv Jordan of willfully threatening to commit a
crime that would result in death or great bodily injury, and also convicted him of
misdemeanor spousal battery. The trial court placed defendant on probation for five
years and ordered him to serve 365 days in county jail.
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Defendant now contends (1) his appointed counsel prior to trial rendered
ineffective assistance, and (2) the trial court erred in granting defendant’s Faretta
motion,1 in which defendant asked to represent himself at trial.
Because defendant does not support his ineffective assistance claim with any
meaningful argument on appeal, the claim is forfeited. In addition, because defendant
asserted his claim of Faretta error for the first time in his reply brief, that claim is
forfeited too. We will affirm the judgment.
BACKGROUND
Our recitation of the background is limited to the circumstances relevant to the
contentions on appeal. In April 2011, following an altercation with his wife, defendant
was charged with willfully threatening to commit a crime that would result in death or
great bodily injury (Pen. Code, § 422 -- count one),2 and willfully and unlawfully
inflicting corporal injury resulting in a traumatic condition (§ 273.5, subd. (a) --
count two). The People further alleged that defendant personally used a firearm when he
threatened the victim (§§ 1203.06, subd. (a)(1) & 12022.5, subd. (a)).
On the date of defendant’s arraignment, the trial court appointed the public
defender’s office to represent him. Shortly thereafter, defendant retained counsel
(Roland Tiemann) and the public defender was relieved. A few months later, defendant
retained a new attorney, Paris Coleman, and Tiemann was relieved. Then, in September
2011, nearly five months after defendant’s arraignment, Coleman was relieved as counsel
and the public defender’s office was reappointed. Assistant Public Defender Thomas
Clinkenbeard represented defendant at the preliminary hearing. Defendant was held to
answer to the charges.
1 Faretta v. California (1975) 422 U.S. 806 [45 L. Ed. 2d 562] (Faretta).
2 Undesignated statutory references are to the Penal Code.
2
Defendant subsequently filed four Marsden motions3 seeking to have
Clinkenbeard relieved as counsel. Defendant claimed Clinkenbeard was not sufficiently
investigating the case, was not communicating sufficiently, was not prepared for the
preliminary hearing, failed to introduce relevant evidence, failed to properly cross-
examine witnesses, and was not prepared for trial. Clinkenbeard responded to each of
defendant’s assertions and the trial court denied all four of defendant’s Marsden motions.
In denying the fourth Marsden motion, the trial court described Clinkenbeard as
“extremely prepared” and “extremely diligent in his preparation of this case.” The trial
court also found Clinkenbeard’s strategic choices were “sound” and that it was
appropriate not to let defendant “micromanage the case.”
Defendant then asked the trial court to allow him to represent himself pursuant to
Faretta, supra, 422 U.S. 806 [45 L. Ed. 2d 562]. The trial court asked defendant
numerous questions to make sure he was intelligently and knowingly giving up his
constitutional right to court-appointed representation, reminded defendant of his
constitutional right to counsel, and warned him of “the dangers and the disadvantages of
proceeding without a lawyer.” The trial court gave defendant a week to review the
written advisements regarding representing himself.
A week later, defendant returned to court. The trial court asked if defendant had
an opportunity to review the written advisements; defendant acknowledged reviewing
them. The trial court advised defendant his maximum exposure, if found guilty at trial,
was 14 years in prison, along with fines exceeding $10,000. The trial court again asked
defendant numerous questions to make sure defendant’s decision to represent himself
was knowing and intelligent, and again repeated the dangers and disadvantages of
proceeding without a lawyer. Finally, the trial court asked defendant: “Is it still your
3 People v. Marsden (1970) 2 Cal. 3d 118 (Marsden).
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decision to represent yourself?” Defendant responded: “One million percent, yes.” The
trial court granted defendant’s Faretta motion and defendant represented himself at trial.
The jury convicted defendant of willfully threatening to commit a crime that
would result in death or great bodily injury (§ 422), and found true the allegation that he
personally used a firearm in the commission of the crime (§ 12022.5, subd. (a)). The jury
found defendant not guilty of willfully inflicting corporal injury resulting in a traumatic
condition (§ 273.5, subd. (a)), but found him guilty of the lesser included misdemeanor
offense of spousal battery (§ 243, subd. (e)(1)).
The trial court placed defendant on probation for five years and ordered him to
serve 365 days in county jail.
DISCUSSION
I
Defendant contends his appointed counsel prior to trial rendered ineffective
assistance. But he makes no actual argument in support of his claim. Rather, he cites
Strickland v. Washington (1984) 466 U.S. 668 [80 L. Ed. 2d 674] for the general
proposition that he has a right to competent counsel. He cites two other cases for the
same general proposition. In addition, he cites several more cases for the proposition that
“[c]riminal defense attorneys have a ‘DUTY TO INVESTIGATE’ carefully all defenses
of fact and of law that may be available to the defendant.” But defendant makes no
meaningful argument as to why any of the cited cases are applicable to his claim of
ineffective assistance.
Because defendant asserts his claim without any meaningful argument, the claim
is forfeited. (People v. Gionis (1995) 9 Cal. 4th 1196, 1214, fn. 11; People v. Hardy
(1992) 2 Cal. 4th 86, 150; People v. Wharton (1991) 53 Cal. 3d 522, 563.)
II
In his reply brief, defendant asserts for the first time on appeal that the trial court
erred in granting defendant’s Faretta motion and allowing him to represent himself at
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trial. Defendant argues the trial court did not offer him another attorney, but simply left
him to his own devices as a pro per defendant. He further argues that a trial requires “the
expertise of an attorney,” which he is not. Thus, he concludes, he was deprived of a fair
trial.
This argument is forfeited because it is raised for the first time in his reply brief
without a showing of good cause. (Garcia v. McCutchen (1997) 16 Cal. 4th 469, 482,
fn. 10; Reichardt v. Hoffman (1997) 52 Cal. App. 4th 754, 764-765.) “Points raised for the
first time in a reply brief will ordinarily not be considered, because such consideration
would deprive the respondent of an opportunity to counter the argument.” (American
Drug Stores, Inc. v. Stroh (1992) 10 Cal. App. 4th 1446, 1453; Reichardt v. Hoffman,
supra, 52 Cal.App.4th at pp. 764-765.)
In any event, the contention lacks merit. “[A] defendant in a state criminal trial
has a constitutional right to proceed without counsel when he voluntarily and intelligently
elects to do so.” (Faretta, supra, 422 U.S. at p. 807 [45 L.Ed.2d at p. 566], italics
omitted.) “ ‘ “[I]n order to invoke the constitutionally mandated unconditional right of
self-representation a defendant in a criminal trial should make an unequivocal assertion
of that right within a reasonable time prior to the commencement of trial.” [Citations.]’
[Citation.] Failure to grant a proper Faretta request is reversible error. [Citation.]”
(People v. Skaggs (1996) 44 Cal. App. 4th 1, 5, italics omitted.)
“When ‘a motion to proceed pro se is timely interposed, a trial court must permit a
defendant to represent himself upon ascertaining that he has voluntarily and intelligently
elected to do so, irrespective of how unwise such a choice might appear to be. . . .’ ”
(People v. Dent (2003) 30 Cal. 4th 213, 217, italics omitted.)
Defendant made an unambiguous motion to represent himself. After he made his
motion, the trial court engaged in painstaking efforts to make sure defendant’s request
was knowing and intelligent. The trial court also repeatedly advised defendant of the
potential dangers of representing himself, and continued to remind him that he was
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entitled to a court-appointed attorney. Despite those advisements, defendant said he was
“[o]ne million percent” certain he wanted to proceed without an attorney. He cannot now
claim he was denied effective assistance of counsel and thus a fair trial. (See People v.
Carson (2005) 35 Cal. 4th 1, 8 [“ ‘whatever else may or may not be open to him on
appeal, a defendant who elects to represent himself cannot thereafter complain’ ” about
the quality of his defense].)
The trial court did not err in granting defendant’s Faretta motion.
DISPOSITION
The judgment is affirmed.
MAURO , J.
We concur:
RAYE , P. J.
HULL , J.
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