NOT TO BE PUBLISHED
Appointed counsel for defendant Jimmie Lee Jones, Sr., asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
Defendant and J.C. lived together and a friend reported to a police investigator that defendant hit J.C. often, resulting in black eyes and bruises. One evening in April 2015, defendant struck J.C. with his closed fists and choked her, threatening to kill her. J.C. was planning to leave defendant because she was scared.
On May 2, 2015, J.C. and defendant began arguing and then physically fighting in a parking lot. Defendant ultimately drove his van into the driver's door of the SUV where J.C. was sitting.
Police Officer Jamie Rouland responded, took J.C.'s statement and photos of her injuries, and observed the evidence at the scene. J.C. explained she and defendant had previously argued and he struck her with a baseball bat on her leg. She grabbed two knives from the kitchen to defend herself and he left. Later, he returned with a pitchfork, stating that he was going to kill her. He lunged at her and she raised her arm to protect herself. He stabbed her in the right forearm. When defendant dropped the pitchfork, she picked it up and chased him in the yard. When a neighbor intervened, defendant became apologetic and offered to take J.C. to the hospital. She was afraid to go with him, believing he would kill her. Later that night, J.C. went to the hospital by herself to have her wound treated. She received stitches to close the wound. She lied to hospital staff, claiming she had fallen on a pitchfork while chasing her dog in the yard. She did not want the hospital calling the police, fearing defendant would retaliate against her. The officer testified that J.C. looked fearful and was upset and distraught when telling him what happened. Hospital records reflected that J.C. had been treated on April 30, 2015.
Defendant was arrested on May 2, 2015 at the couple's trailer. An officer found two pitchforks on the property.
A criminal protective order was served on defendant on May 5, 2015, prohibiting him from having any contact with J.C. But between May 5, and June 12, 2015, while defendant was in jail, phone calls and jail visits between defendant and J.C. were recorded. He discussed with her whether the case could proceed without a victim, told her how to explain her injury, told her she could retract her statement and suggested what she should say, and referred to letters he had written instructing her to do what he asked.
In 1989 defendant was convicted of felony corporal injury to a cohabitant; in 2000 he was convicted of criminal threats; in March 2001 he was convicted of misdemeanor corporal injury to a cohabitant; and in August 2009 he was convicted of a felony related to an assault on a cohabitant.
The jury convicted defendant of corporal injury to a cohabitant (Pen. Code,
After denying defendant's request to dismiss the prior strike allegations, the court sentenced defendant to 126 years to life in prison.
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief. He claims the motion he brought in the trial court to discharge his appointed attorney (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)) should be reviewed, suggesting the trial court abused its discretion in denying his motion.
Our review of the record discloses that defendant sought to discharge his defense counsel after conviction but prior to sentencing, complaining that defense counsel failed to investigate or call witnesses to testify. According to defendant he never saw the investigator and at trial defense counsel had no communication with his investigator. Defendant claimed two witnesses could offer an alibi about the night J.C. was injured with a pitchfork but one of his witnesses could not remember the date, and he also had witnesses who saw his van accidentally jump out of gear and move forward; one of the witnesses showed up at trial but defense counsel refused to call him to testify. The other witness who saw the van jump was in jail charged with an unrelated murder.
Defense counsel explained he had investigated and did not call certain witnesses based on strategy and trial tactics. Defense counsel said one potential witness claimed he did not know defendant very well, but defense counsel subsequently learned the witness had been friends with defendant for a long time. Defense counsel concluded the witness would do more harm than good. Regarding the alibi witness, jail recordings suggested an alibi witness would be invented.
The trial court denied defendant's motion to discharge his trial counsel, finding that defense counsel made tactical decisions and defendant had not shown that failure to replace counsel would impair defendant's right to counsel.
"Established principles govern our assessment of whether the [trial] court abused its discretion in denying defendant's Marsden motion. `Once a defendant is afforded an opportunity to state his or her reasons for seeking to discharge an appointed attorney, the decision whether or not to grant a motion for substitution of counsel lies within the discretion of the trial judge. The court does not abuse its discretion in denying a Marsden motion "`unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.'" [Citations.] Substantial impairment of the right to counsel can occur when the appointed counsel is providing inadequate representation or when "the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]."'" (People v. Myles (2012) 53 Cal.4th 1181, 1207.)
The record shows defense counsel investigated the witnesses defendant identified and made tactical decisions not to call them. Defendant may have disagreed with some of those decisions but the record does not compel discharge of appointed counsel. (People v. Cole (2004) 33 Cal.4th 1158, 1192.) The trial court did not abuse its discretion in denying defendant's Marsden motion.
Defendant also complains about his appellate counsel's performance in filing a Wende brief and requests new counsel. He claims his appellate counsel painted a picture of him even more frightening than the prosecution could paint. But we have reviewed the filings and the record in this case and conclude defendant's appellate counsel was not deficient.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
ROBIE, Acting P. J. and RENNER, J., concurs.