Filed 2/1/00

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Clayton S. Tanaka and Garrick W. Chock, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant James Allen Mar was convicted after jury trial of violating Penal Code sections 69 and 148.10, subdivision (a) (interfering with and resisting a peace officer); the court found allegations that defendant had suffered two prior serious felony convictions within the meaning of the three strikes law and had served a prior prison term to be true. He was sentenced to 26 years’ imprisonment.

Defendant challenges his most recent convictions on numerous grounds. In the published portion of this opinion, we address defendant’s contention that the trial court infringed on his constitutional protection against self-incrimination by refusing to remove the electronic stun belt he wore during trial while he testified. Having concluded that the record discloses the existence of a manifest need for restraint and that defendant did not show that the security risks which necessitated belting were reduced or eliminated while he testified, we find no error. In the unpublished portion of this opinion, we address defendant’s claims of instructional error and reject his contentions that the trial the court erroneously refused to permit his attorney to withdraw after he filed a writ of habeas corpus alleging ineffective assistance of counsel and that it compounded this error by refusing to consider motions defendant filed in propria persona. As prejudicial error has not been shown, we will affirm.

A. Prosecution evidence.

At approximately 3:00 p.m. in the afternoon of September 2, 1996, Kern County Sheriff Deputy Raymond Mellon was dispatched to a residential street in Taft to investigate a report of a disoriented male. He found defendant sitting on a curb, crying. Defendant told Deputy Mellon he could not recall his name, although he believed his first name might be "Jim." A consensual search disclosed no identification on defendant’s person or belongings. After further conversation, Deputy Mellon asked defendant to accompany him to the Taft Police Department for a fingerprint check to determine his identity. Defendant agreed.

Deputy Mellon transported defendant, unrestrained, to the Taft police station. At the booking counter defendant recalled his last name and other bits of information. The police dispatcher performed a warrant check for "James Mar" and found an outstanding "want" by a parole agent. Shortly thereafter, Parole Agent David Soares telephoned Deputy Mellon and told him to place a parole hold on defendant (§ 3056). Deputy Mellon then asked defendant to go inside the booking holding cage and sit down on the bench. After defendant complied, Deputy Mellon closed the wire mesh door of the cage and informed defendant he was under arrest for a parole violation.

Defendant’s demeanor abruptly changed. He began pacing the floor and yelling and pounding on the cage’s cement walls and the wire mesh door with his closed fists. He aggressively threatened to "kick [Deputy Mellon’s] ass" and challenged him to open the door so they could fight. Taft Police Sergeant Matthew Holm heard the disturbance and went to the booking area with another officer. Defendant threatened to "kick everybody’s ass" and continued pounding on the walls and pacing.

Normally, after booking is completed, inmates are removed from the holding cage and placed in a jail cell. However, because of defendant’s agitated state, Sergeant Holm and Deputy Mellon decided to move defendant from the holding cage into a specially padded "detox" cell. They were concerned defendant might harm himself if he were left in the cage or placed in a regular cell. They also hoped that because individuals inside the detox cell cannot see any jail officers, defendant might calm down once he was moved.

Sergeant Holm walked to the cage door, told defendant he was going to be moved and asked for his cooperation. In response, defendant assumed a crouched "fight ready stance" and told Holm to "come on in" so he could "kick his ass." Sergeant Holm opened the cage door and defendant rushed head first into his chest, knocking him backwards. As he stumbled, Sergeant Holm hit defendant’s head twice with his right fist, fracturing one of his fingers and damaging a ligament in this hand. Deputy Mellon and another officer helped subdue defendant. He was handcuffed and removed to the detox cell without further incident.

Deputy Mellon did not see any indications from defendant’s appearance that he was under the influence of any drug; the deputy did not believe he was mentally ill or withdrawing from a drug addiction. Defendant did not ask Deputy Mellon for the use of a telephone. Sergeant Holm did not recall whether defendant asked if he could make a telephone call.

B. The defense.

Defendant testified on his own behalf. He lived in Santa Barbara County but had traveled to Taft a few days before his arrest without notifying his parole officer. He had gone on a methamphetamine binge and had not slept for two days, missing a scheduled meeting with his parole officer for a drug test. He had run out of money and his car was inoperable. He felt depressed, scared and anxious because he had violated the terms of his parole by changing his address and using methamphetamine. He decided to return to custody before he was charged with new criminal law violations. He planned to turn himself into the police, call his parole officer and tell the officer he had surrendered so he could obtain leniency for his parole violations. In furtherance of this plan, defendant asked someone to call 911 so he could go to jail. After the call was made, he sat waiting on the curb until Deputy Mellon arrived. When the deputy arrived, defendant pretended he did not recall his name and made up other things to induce Deputy Mellon to take him into custody. When the deputy asked defendant if he minded going to the police station, he readily agreed.

Once they were at the station, defendant told Deputy Mellon his full name, place of birth, address, driver’s license number and the name of his parole agent. He told Mellon he was a parolee and it was important he be allowed to telephone his parole officer and personally report his parole violations. After the booking process was completed, defendant sat in the holding cage and waited for approximately 15 to 20 minutes before again requesting to use the telephone. Mellon did not answer. During the next 10 minutes, defendant asked Mellon four or five more times to use the telephone. He "didn’t really get a response" from the officer. Defendant then saw Mellon begin to dial the telephone. He believed Mellon was telephoning defendant’s parole officer. Hearing Mellon say, "I have one of your parolees in custody," defendant became enraged and started shouting obscenities and banging on the cage.

When Sergeant Holm appeared, defendant loudly demanded to use the telephone, telling him Deputy Mellon had refused his request. Sergeant Holm told him to sit down. He continued pacing and demanding his "fucking’ phone call." He admitted challenging the officers to come and fight him. Defendant saw the officers talking and thought they were going to enter the holding cell to beat him up. He adopted a "stance" and held his hands up. However, when the cage door opened he went forward straight to the floor in self-protection. Sergeant Holm fell on top of him and someone hit him several times on the back of his head. Defendant did not recall lunging into Sergeant Holm’s chest.

Later in his testimony defendant admitted he knew the officers were entering the holding cage to move him to another cell. He "wasn’t going to cooperate [with them]. No." He knew he was "going to end up fighting with [the officers], yes." He fell on the ground to try to keep the officers from moving him, explaining "I wanted to make a phone call. I didn’t want to be removed from, from where I was at. . . . I wanted to make a point that I wanted my call, . . ."

During the second day of trial, May 7, 1997, an electronic stun belt was placed around defendant’s waist underneath his clothing. Stun belts are used to guard against escape and to ensure courtroom safety. This device, manufactured by Stun-Tech, is known as the Remote Electronically Activated Control Technology (REACT) belt. The type of stun belt which is used while a prisoner is in the courtroom consists of a four-inch wide elastic band which is worn underneath the prisoner’s clothing. This band wraps around the prisoner’s waist and is secured by a velcro fastener. The belt is powered by two nine-volt batteries connected to prongs which are attached to the wearer over the left kidney region. Another version of the REACT belt is mainly used when transporting prisoners. It is a clearly visible belt which fastens around the waist of the prisoner over his or her clothes and has steel handcuff rings attached in the front. (Dahlberg, The REACT Security Belt: Stunning Prisoners and Human Rights Groups into Questioning Whether Its Use is Permissible Under the United States and Texas Constitutions (1998) 30 St. Mary’s L.J. 239, 242-243, 246-247 (hereafter Dahlberg); People v. Garcia (1997) 56 Cal.App.4th 1349, 1354, 1358 (hereafter Garcia).)

The stun belt will deliver an eight-second, 50,000-volt electric shock if activated by a remote transmitter which is controlled by an attending officer. The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the ground by the shock and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belt’s metal prongs may leave welts on the wearer’s skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to suffer heartbeat irregularities or seizures. (Garcia, supra, 56 Cal.App.4th at p. 1354; People v. Melanson (Colo.App. 1996) 937 P.2d 826, 835; Dahlberg, supra, 30 St. Mary’s L.J. at pp. 247-252; Brienza, Stun Belts Zapped by Civil Liberties Groups (1999) 35-APR Trial 99, 99 (hereafter Brienza).)

The decision to belt defendant was precipitated by pretrial incidents in which defendant became loud and combative towards detention officers, as well as consideration of the nature of the current offense and defendant’s prior criminal history, which includes convictions for assault with a deadly weapon on a peace officer and nonviolent escape. On February 14, 1997, while defendant was in custody at the Lerdo pretrial facility, defendant became angered with a correctional officer and threatened to "‘bust him in the mouth.’" Another incident occurred on March 19, 1997. On this occasion, defendant began yelling, kicking at walls, stomping the floor and challenging a female deputy to come into his cell and fight with him. Defendant also verbally assaulted his own defense attorney during this incident.

Out of the presence of the jury, defendant, through his attorney, asked that the stun belt be removed while he was testifying. Counsel explained, "If the Court wants him to wear it before he gets on the stand to testify or after he testifies, he’s agreeable to do that, but he’s asking that it not be on so it won’t impede his testimony." She stated that defendant objected to wearing the belt because it was making him nervous and agitated. He was afraid of accidental activation. Defendant was concerned that he would not be able to think clearly and testify properly while wearing the belt. Furthermore, defendant found it uncomfortable to sit while wearing the belt because it prevented him from leaning all the way back in his chair.

The court initially deferred ruling on the matter, although it did note that it was concerned because "from time to time [defendant] does appear to reflect strong emotions." Later in the morning, it denied defendant’s request to remove the belt while he testified. Thereafter, defendant testified without incident as set forth, ante.

Objection to the use of stun belts on prisoners has been raised in various forums on the ground that the device constitutes cruel and unusual punishment in violation of the Eighth Amendment to the federal Constitution, that it interferes with the wearer’s Sixth Amendment right to the assistance of counsel and that it impinges upon the presumption of innocence and therefore violates the Fourteenth Amendment’s due process protection. (See, e.g., Dahlberg, supra, 30 St. Mary’s L.J. 239; Schultz, Terror, Torment, and Tyranny: The State of Human Rights Today (1998) 12 Emory Internat. L.Rev. 1255; Brienza, supra, 35-APR Trial 99; Burley, History Repeats Itself in the Resurrection of Prisoner Chain Gangs: Alabama’s Experience Raises Eighth Amendment Concerns (1997) 15 Law & Inequity: A Journal of Theory & Practice 127.) However, defendant does not advance such arguments here. Rather, he contends that the trial court’s refusal to remove the belt while he was testifying violated his Fifth Amendment protection against self-incrimination because he was unable to testify unimpeded by fear of electric shock. Relying on Garcia, supra, 56 Cal.App.4th 1349, respondent argues that the traditional rules for physical restraint during jury trial do not apply and the decision to require belting met the applicable "good cause" standard. As shall be explained, we find Garcia to be poorly reasoned; in our judgment the stun belt is a physical restraint and the traditional rules governing use of restraints apply. However, the record here amply justifies the decision to belt defendant. As he did not set forth any persuasive justification for the removal of the belt while he testified, we do not find error.

In People v. Duran (1976) 16 Cal.3d 282 (hereafter Duran), our high court addressed the use of physical restraints in the courtroom, holding that because of the "possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand,… a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints." (Id. at pp. 290-291.) Duran’s holding was not limited to visible restraints. Rather, the high court "simply note[d] that less drastic and less visible restraints" than shackles or manacles "should be employed when, in the exercise of his discretion, the judge concludes it is safe to do so." (Id. at p. 291, fn. 9.) The court even specified in Duran that when visible restraints are used the jury must be instructed sua sponte to disregard the restraints in reaching its verdict. When the restraints are concealed, such an instruction is not to be given absent request from the defendant. (Id. at pp. 291-292.)

In Garcia, supra, 56 Cal.App.4th 1349, the Second District Court of Appeal upheld the trial court’s order that defendant be belted during trial. Central to the opinion was the appellate court’s conclusion that a stun belt was not a physical restraint within the meaning of Duran. This finding was based on the facts that the belt is not seen by the jurors, does not restrain physical movement, "does not diminish courtroom decorum, is less likely to discourage the wearer from testifying, and should not cause confusion, embarrassment or humiliation." (Id. at p. 1356.) However, in reaching this conclusion, the appellate court explicitly refused to consider whether the belt caused a psychological restraint stemming from the fear that sudden movement would cause a debilitating electric shock as it determined this assumption was unwarranted. (Id. at pp. 1356, 1357.) Moreover, it ignored all of Duran’s references to nonvisible restraints. The opinion focuses almost exclusively on the fact that the stun belt is not visible. These omissions undercut the validity of Garcia’s holding; we find the opinion to be less than persuasive and will therefore assess the issue independently.

Defendant’s argument below focused on the anxiety and distraction occasioned by fear of accidental activation. The trial court summarily dismissed this possibility. We are not so sure. There appears to be an alarmingly high error rate associated with stun belts. While this court does not offer any opinion regarding the legal conclusions reached in Dahlberg, the article includes the following disturbing factual assertion, which it supports by citation to several seemingly reliable sources: "During the few years that the REACT belt has been in use in courtrooms, it has been activated a total of twenty-one times, only twelve times intentionally." (Dahlberg, supra, 30 St. Mary’s L.J. at p. 289.) This constitutes an approximately 43 percent error rate. (Ibid.) Dahlberg also references a comment by Stun-Tech’s president "that belts were used to shock inmates intentionally ten times and accidentally eight times," and another remark that "unintentional activations match intentional ones." (Id. at p. 304, fn. 274.) An accidental activation rate of close to 50 percent cannot be dismissed cavalierly.

At least two instances of accidental activation have been documented. In State v. Filiaggi (Ohio 1999) 714 N.E.2d 867, the Ohio Supreme Court upheld defendant’s murder conviction despite the fact he had been accidentally shocked by a stun belt. And the accidental activation of the stun belt worn by the accused during a death penalty murder trial in Dallas, Texas, received wide news coverage. (Dahlberg, supra, 30 St. Mary’s L.J. at pp. 296-297.)

We are not the first court to give credence to the risk of accidental activation and consequent psychological effects on the wearer. In People v. Melanson, supra, 937 P.2d 826, Division IV of the Colorado Court of Appeals found defendant’s fear of accidental activation to be a relevant factor in determining whether use of this security measure was appropriate. And in U. S. v. Simmonds (D. Colo. 1998) 179 F.R.D. 308, the court addressed defendant’s argument that his consent to proceed before a magistrate had been coerced, in part because he was afraid of the stun belt he had been forced to wear during proceedings. (Id. at p. 312, fn. 2.)

We are also cognizant of the fact that a stun belt, if activated, may cause the wearer to suffer serious, painful and humiliating injury which could be permanent in nature. (Dahlberg, supra, 30 St. Mary’s L.J. at p. 276.) Shackles and handcuffs, while visible, do not present a risk of substantial physical harm. The stun belt does. In addition to shaking, pain, burns and uncontrolled defecation/urination, application of 50,000 volts of electricity could cause a wearer to suffer heartbeat irregularities and seizures. In at least one instance, application of such a shock killed its recipient. (Id. at pp. 251-252, 276.)

Given these factors, we find defendant’s fear of the stun belt to be reasonable. Even the belt’s manufacturer advertises that the device will provide the controlling officers with "‘total psychological supremacy’" over its wearer. (Dahlberg, supra, 30 St. Mary’s L.S. at p. 252.) The wearer of a stun belt is necessarily exposed to a substantial risk that the device will be accidentally activated, triggering at the minimum a profoundly humiliating episode of pain and shaking and possibly causing more serious injury. The fact that the belt was not readily observable is not determinative; Duran, supra, 16 Cal.3d 282 does not exempt nonvisible security devices from its holding that a manifest need for restraint must be shown. (At pp. 290-291.) Accordingly, we hold that a stun belt is a physical restraint within the meaning of Duran and therefore, the traditional standard applies.

Yet, even under Duran’s more restrictive "manifest need" standard, the record contains ample justification for belting defendant during his testimony. He was on trial for assaulting a guard; he had previously been convicted of escape and of assaulting a peace officer; on two recent occasions he had threatened correctional officers and threatened his own defense attorney. Defendant was certainly a security risk who placed courtroom personnel in peril.

Moreover, defendant did not object to the belting per se and did not request that an alternative form of restraint be used. He only objected to being belted while he testified. However, defendant did not explain why he presented any less a security risk while he testified than at other times during the trial and no justification for relaxing security during this period appears from the record.

Finally, there is no indication from defendant’s testimony that his mental faculties were impaired during his testimony, that he was confused, or the belting impacted his ability to communicate with counsel. The fact that defendant did not disrupt the courtroom proceedings does not impeach the court’s decision. Rather, it may simply indicate that the belting served its intended purpose.

We hold that the trial court acted well within its discretion in denying defendant’s request to remove the stun belt while he testified. (People v. Melanson, supra, 937 P.2d at pp. 835-836; cf. U.S. v. Brooks (7th Cir. 1997) 125 F.3d 484, 502.)

In relevant part, the trial court instructed the jury on the elements of section 148.10 in the language of CALJIC No. 9.82, as follows:

However, the court omitted that portion of CALJIC No. 9.82 which provides as a sixth element that the jury must also find the detention and arrest to be lawful and the existence of probable cause to detain. This decision was almost certainly made in conformity with the Use Note to this instruction which provides that this final element "should be deleted if the incident arises out of confrontation not involving an arrest or detention." (CALJIC (6th ed. 1996 bound vol.) p. 695.) Defendant cites the omission as error. We agree but find the defect harmless.

While the initial detention and transport to the police station was consensual, his arrest was not. Deputy Mellon testified that although defendant voluntarily entered the cage, he became enraged after the door was closed and he was told that he had been arrested. Defendant’s attack on Sergeant Helm occurred after this nonconsensual arrest. Thus, even assuming for purposes of this discussion that the Use Note to the instruction is legally correct, it was not applicable to the instant facts; CALJIC No. 9.82 should have been read in its entirety.

We reject defendant’s contention that the error is per se reversible. Some appellate courts have found the lack of full instruction on the meaning of one or more elements of a criminal offense to be inherently prejudicial. However, in People v. Flood (1998) 18 Cal.4th 470, our state Supreme Court held otherwise, concluding that instructional error affecting an element of the offense is not a structural defect requiring automatic reversal of the conviction under either the California or United States Constitution. (Id. at pp. 490, 504.) The court first explained,

It next analyzed applicable United States Supreme Court authorities and concluded,

The court then found the instructional error at issue to be harmless beyond a reasonable doubt, explaining that "[u]nder the circumstances of the present case, reversing defendant’s conviction because of an instructional error concerning an uncontested, peripheral element of the offense, which effectively was conceded by defendant, was established by overwhelming, undisputed evidence in the record, and had nothing to do with defendant’s own actions or mental state, would erode the purpose and rationale of the harmless error doctrine and promote disrespect for the judicial system." (18 Cal.4th at p. 507.) While a defendant’s tactical decision not to "contest" an essential element of the offense does not dispense with the requirement that the jury consider whether the prosecution has proved every element of the crime, defendant’s failure to contest was tantamount to a concession of the element at issue. (Id. at p. 505.)

We will assume for purposes of this discussion that the instructional error at issue here omitted an element of the offense and implicates defendant’s federal due process rights. We therefore "proceed to consider whether it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict." (18 Cal.4th at p. 504.) Just as in Flood, we find the omission nonprejudicial. Defendant did not contend at trial that the arrest was unlawful. In fact, he denied even being angry over the arrest, claiming that his rage stemmed from the fact he was not able to personally inform his parole officer that he had, essentially, turned himself into the authorities. Moreover, the undisputed evidence clearly established that the arrest was lawful and supported by the requisite probable cause. Deputy Mellon testified that he had received a telephone call from Parole Agent David Soares asking defendant to be placed under arrest for violating his parole and defendant had told the officer that he did not reside in Kern County. We conclude that defendant effectively conceded this element and undisputed evidence establishes the requisite factual finding. Accordingly, we are satisfied beyond a reasonable doubt that the instructional error could not have affected the verdict and is therefore harmless.

To be found guilty of violating either section 69 or section 148.10, the peace officer must have been engaged in the performance of his or her duties when the accused resisted the officer. Defendant concedes that the jury was properly instructed that a peace officer is not engaged in the performance of his duties if he uses unreasonable or excessive force in exercising or attempting to exercise custodial control over a prisoner. However, relying on section 851.5, defendant argues this instruction was insufficient; the trial court had an obligation to instruct the jury that if the officers deprived defendant of his right to make telephone calls they were not engaged in the performance of their duties. Expanding on this line of reasoning, defendant also contends that the jury should have been instructed sua sponte on the lesser included offenses of misdemeanor simple assault and battery because there was a factual question whether the officers were engaged in the performance of their duties when the attack occurred. As will be shown below, this entire chain of thought is flawed and these arguments lack merit.

Defendant’s argument is premised on the unsupported assumption that violation of section 851.5 necessarily renders all of the arresting authorities’ subsequent actions unlawful. This is not the law; defendant has proffered no authority containing such a holding and we decline his implicit invitation to do so here. Even were this court to assume that defendant did ask to make one or more telephone calls and that the officers did not immediately comply with this request, this fact does not render the officers’ subsequent attempt to remove defendant to another cell unlawful. It is undisputed that the assault on Sergeant Holm occurred during the removal of defendant from the holding cage to the "detox" cell for defendant’s own protection. Violation of section 851.5 is not a defense to the crime of assault on a peace officer. No error appears.

III. Denial of defense counsel’s motion to withdraw was not an abuse of discretion.

On July 3, 1997, defense counsel moved to withdraw on the ground that there existed a conflict of interest between she and defendant resulting from his filing of a petition for writ of habeas corpus in an appellate court based on ineffective assistance of counsel at trial. At the hearing on the motion, defense counsel informed the court that defendant refused to communicate with her because he believed she should have presented further witnesses and a psychiatrist at trial. Counsel stated that she would continue to represent the defendant "if the Court wants me to." Thereafter, the court denied the motion on the grounds that defendant’s refusal to work with his attorney did not justify removal and counsel was still able to litigate sentencing issues and issues relative to a new trial motion. It also granted defense counsel a two-week continuance of sentencing so she could file a motion to strike one or more of the priors.

On appeal, defendant argues that his act of filing a habeas petition on the ground that counsel was ineffective at trial created an actual or potential conflict of interest mandating appointment of alternative counsel. Unfortunately for defendant, in People v. Horton (1995) 11 Cal.4th 1068, our Supreme Court has declared otherwise. There, the high court rejected defendant’s claim that "the trial court erred in refusing to permit appointed counsel to withdraw as counsel for defendant on the asserted ground the filing of [a] malpractice action [against counsel] created a conflict of interest between defendant and appointed counsel." (Id. at p. 1104.) The court gave two reasons. First, defendant’s claim of a conflict of interest was undermined because he had voluntarily dismissed the malpractice complaint. Second, the trial court’s finding that the suit was frivolous and filed for the purpose of interfering with the criminal prosecution was supported by the record. (Id. at pp. 1106-1107.) In its discussion of the latter point, the high court stated that while being named as a defendant in a collateral lawsuit may place the attorney in a situation in which his or her loyalties are divided, a criminal defendant’s decision to file such an action does not require disqualification unless the circumstances demonstrate an actual conflict of interest. (Id. at p. 1106.) "A contrary holding would enable an indigent criminal defendant to challenge each successive appointment of counsel, delaying indefinitely the criminal prosecution." (Ibid.)

Following and applying Horton, we conclude the principle that the mere filing of a petition for habeas corpus, even if premised on an allegation of ineffectiveness of trial counsel, does not necessarily create a conflict of interest between that attorney and his or her client in subsequent proceedings. Rather, only if the circumstances demonstrate an actual conflict of interest between the two is disqualification required.

The trial court here concluded that defendant’s complaints regarding his attorney set forth in the writ petition stemmed from disgruntlement with the verdict, a result we note that is supported by ample evidence, and did not create an actual conflict with regard to counsel’s continued representation of defendant during posttrial proceedings. This finding is entirely reasonable. There is no indication in the record that defense counsel’s representation of defendant at trial was prejudicially deficient; nothing contradicts the court’s implicit conclusion that the writ petition was frivolous. Exhibiting shrewd common sense, the trial court cogently explained, "There’s always questions about trial strategy and every losing defendant would be in the same position to immediately have attorney appointed to cross-check and second guess trial attorney’s performance in a losing trial."

Contrary to defendant’s representation on appeal, there is no evidence in the record showing that defense counsel did not file a motion for new trial because of the pending writ petition. Likewise, there is no record support for defendant’s assertion that defense counsel was "obviously bitter and fearful of [defendant’s] seeking review of her ineffectiveness and his complaints." To the contrary, defense counsel unequivocally informed the court that she was willing to continue representing defendant "if the Court wants me to." Subsequent to this hearing, defense counsel filed and argued a motion to strike defendant’s prior convictions and ably represented him at sentencing.

For these reasons, we conclude that the motion to withdraw was properly denied; abuse of discretion has not been shown. (People v. Horton, supra, 11 Cal.4th at pp. 1104-1107; see also People v. Carr (1972) 8 Cal.3d 287, 299; Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1021-1023.)

During June and July of 1997 defendant peppered the court with numerous in propria persona motions/requests seeking a free trial transcript and a new trial. Two of the motions for new trial were filed after the court denied the motion to withdraw. As defendant was represented by counsel, the trial court properly refused to respond to these motions/requests. (People v. Mattson (1959) 51 Cal.2d 777, 787, fn. 3; People v. Brown (1986) 179 Cal.App.3d 207, 214-215.)

On appeal, defendant contends that because defendant complained in these motions about his defense attorney’s effectiveness at trial and referenced "conflicts" with her, the trial court was obligated to inquire of the defendant whether he wished to have another attorney appointed to represent him and if so, to conduct a Marsden hearing. We find the argument ludicrous. Defendant sought a new trial because he was not timely arraigned, there had been juror and prosecutorial misconduct, the evidence was insufficient to sustain the verdicts and he had discovered new and material evidence. In connection with his claim of juror misconduct, defendant sought release of personal juror identifying information. In none of the motions did defendant ask the court to relieve defense counsel and either appoint alternative counsel or permit self-representation; defendant did not reference either Marsden or Faretta. The trial court was not obligated to even consider defendant’s in propria motions, much less to divine the hidden agenda proposed on appeal and act thereon sua sponte.

The judgment is affirmed.

__________________________, Buckley, J.

WE CONCUR:

___________________________, Ardaiz, P.J.

___________________________, Vartabedian, J.