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People v. Whitt10/25/1990
hearing.
(See People v. Marsden (1970) 2 Cal. 3d 118 [84 Cal. Rptr. 156, 465 P.2d 44].) We disagree.
Defendant presented the court and counsel with a two-page handwritten document at a May 1985 hearing scheduled for consideration of all posttrial motions, including the automatic motion to modify the verdict. (See § 190.4, subd. (e).) Defendant's document requested "release" of current counsel and appointment of "a new attorney" who could begin familiarizing himself with the case in the event a retrial was later granted on appeal. The motion also questioned the competency of defendant's two trial counsel, Broderick and Woodson, on grounds that: (1) no defense had been presented at the special circumstance retrial, (2) Dr. Demos's testimony had not been introduced until the penalty phase, and (3) an unidentified psychologist had essentially questioned counsel's competence.
The court asked defendant whether new counsel was also being sought to review the transcripts and determine whether to expand upon a motion for new trial already pending before the court. Defendant said, "yes." The court estimated that appointment of new counsel for this purpose would delay pronouncement of judgment for over two months. The court then continued the hearing to give both sides additional time to prepare argument.
At the hearing three days later, the court asked whether the parties wished to say anything further on defendant's request for new counsel. Defendant responded with an "offer of proof" regarding statements allegedly made by the previously unidentified psychologist. The court then denied the motion to substitute counsel in its entirety.
Defendant concedes he was given an adequate opportunity to present the factual basis for his request. (See People v. Marsden, supra, 2 Cal. 3d 118, 123-124; cf. People v. Lucky, supra, 45 Cal. 3d 259, 281.) He insists, however, that the motion should have been granted so that incompetence of trial counsel could be raised as a grounds for new trial. (Citing People v. Fosselman, supra, 33 Cal. 3d 572, 582 [court may order a new trial based on ineffective assistance of counsel].)
We see no abuse of discretion. The only reasons given in support of the Marsden motion related to counsel's performance before or during the
February 1985 special circumstance retrial. Because defendant never indicated dissatisfaction with counsel in the ensuing three- to four-month period, the court had reasonable grounds to question the sincerity of his current criticisms. In any event, the motion could properly be denied as untimely. The court was not required to stop the nearly completed proceeding in its tracks in order to allow another attorney to completely familiarize himself with the case. Denial of the Marsden motion was within the court's discretion. (See, e.g., People v. Miranda, supra, 44 Cal. 3d 57, 77.)
J. Motion to Modify Penalty Verdict
Defendant contends the trial judge "misweighed" certain statutory factors, and erroneously denied the automatic motion for modification of the death verdict. (§ 190.4, subd. (e) (hereafter section 190.4(e)).) We see no basis for a remand.
The judge began by reciting his duty to "review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances," and to determine whether the jury's finding that aggravation outweighs mitigation is "contrary to law or the evidence presented." (§ 190.4(e).) The judge said he had conducted an "independent" analysis u
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