The People v. Gibbs CA2/6

Filed 9/24/13 P. v. Gibbs CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B244845 (Super. Ct. No. 1404452) Plaintiff and Respondent, (Santa Barbara County)

v.

JOHN FITZGERALD GIBBS,

Defendant and Appellant.

John Fitzgerald Gibbs appeals from the judgment after conviction by jury of one count of inflicting corporal injury to a spouse or cohabitant (Pen. Code, § 273.5, subd. (a));1 making criminal threats (§ 422); dissuading a witness from making a report to a law enforcement officer (§ 136.1, subd. (b)(1)); and four counts of disobeying court orders (§ 166, subd. (a)(4)). The jury found Gibbs not guilty of one count of dissuading a witness form giving testimony at trial. (§ 136.1, subd. (a)(1).) The trial judge sentenced Gibbs to seven years and four months in custody, consisting of a four-year upper term in state prison for inflicting corporal injury, plus two consecutive eight-month prison terms for

1 All statutory references are to the Penal Code unless otherwise stated.

criminal threats and dissuading a witness, and four consecutive six-month terms in county jail for disobeying court orders. S.W. testified that Gibbs assaulted her for four or five hours in a hotel room after their wedding on February 14, 2012. She testified that he shook her, choked her, slammed her head against the wall, and threatened to kill her and himself. She said that when police knocked on the door the following day, he told her to say her bruises were caused by rough sex. Three of Gibbs' prior romantic partners testified to similar abuse. After his arrest and while restraining orders were in place, Gibbs contacted S.W. frequently. We appointed counsel to represent Gibbs in this appeal. After counsel's examination of the record, he filed an opening brief raising no issues. In a supplemental brief, Gibbs contends that the trial court erred when it denied his request to replace appointed counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)), that insufficient evidence supported his conviction for dissuading a witness, and that his sentence was unduly harsh. The trial court did not abuse its discretion when it denied Gibbs' Marsden motion. The record does not clearly show inadequate representation or that Gibbs and his counsel had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result. (People v. Taylor (2010) 48 Cal.4th 574, 599.) Gibbs argues that he was unprepared for the Marsden hearing, but the record demonstrates that the court allowed Gibbs a full and fair opportunity to explain the basis of his contention and to relate specific instances of inadequate performance. Gibbs contends that counsel refused to present specific witnesses and evidence, but he did not express these concerns at the hearing. He referred only generally to "evidence" that he had brought to counsel's attention. Gibbs contends that counsel had not spent adequate time meeting with him, but acknowledges at the hearing that he had several telephone