Opinion
CHRISTIAN, J. Robert Culton appeals from a judgment of imprisonment which was rendered after jury trials had resulted in* verdicts finding him guilty of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd.(a)), rape (Pen. Code, § 261, subd. 3) and second degree robbery (Pen. Code, § 211).
Appellant visited at night the apartment of the victim, a pregnant young woman whose “old man” appellant knew was in jail. After some general conversation appellant suggested that he be substituted in the status of “old man.” The victim refused, whereupon appellant slapped her and began to push her against the bed. The victim tried to get away but appellant kicked her several times and then raped her. Appellant took $40 from the victim’s purse and departed.
The victim suffered bruises, abrasions, and a deep laceration which required suturing. The treating physician believed that the victim’s nose had been broken.
When appellant was arrested he said that the victim had given him $40 to get a lawyer for her old man. He claimed that the victim had voluntarily had intercourse with him, and denied injuring the victim. At trial he gave a different version of events, testifying that after the intercourse there had been an argument and that he had struck the victim with his fist after she had kicked him.
The first trial resulted in a verdict finding appellant guilty of felonious assault (Pen. Code, § 245, subd.(a)), and not guilty of burglary. The jury disagreed as to the other charges.
When further trial on the rape and robbery counts was being set, defense counsel announced to the court that appellant wanted “a court-appointed attorney of his choice other than the Public Defender’s [116]Office.” Counsel asked for permission for appellant to address the court himself:
“The Court: All right, Mr. Culton?
“Defendant Culton: I think that I am inadequately being defended by the Public Defender’s Office, and I don’t think that I’m getting a proper defense out of that office, and I would like an attorney of my choice.
“The Court: Okay, the motion is denied.”
Appellant contends, citing People v. Marsden (1970) 2 Cal.3d 118, 123-124 [84 Cal.Rptr. 156, 465 P.2d 44], and related authorities, that the court denied the request for new counsel without adequate inquiry concerning the factual basis of the request. The contention is not supported by the record. The judge did not rule without permitting appellant to state his reasons for wanting new counsel. On the contrary, the judge explicitly invited appellant to speak. Appellant’s statement was not interrupted; it was only after appellant had ceased speaking that the court denied the motion. The true question is whether appellant’s statement offered any substantial grounds which called for further inquiry by the court. The above quoted statement related dissatisfaction, but gave no hint of any factual grounds for that dissatisfaction. It was not error to deny the motion to appoint new counsel. (Cf. People v. Huffman (1977) 71 Cal.App.3d 63 [139 Cal.Rptr. 264]; People v. Earl (1973) 29 Cal.App.3d 894, 900 [105 Cal.Rptr. 831]; People v. Fitzgerald (1972) 29 Cal.App.3d 296, 308 [105 Cal.Rptr. 458]; People v. Jacobs (1972) 27 Cal.App.3d 246, 262 [103 Cal.Rptr. 536].) People v. Munoz (1974) 41 Cal.App.3d 62 [115 Cal.Rptr. 726], is to be distinguished. There the defendant stated a substantial ground for displeasure with the activities of appointed counsel: “You don’t want to fight the case. I tell him the way it happened, and he — he tells me, ‘You are guilty; you ain’t got a chance.’ What kind of a defense do I have, if I listen to him?” (41 Cal.App.3d at p. 64.) In the face of this specific charge that appointed counsel was unwilling to perform his assigned role of advocacy, the attorney remained silent. The charge obviously related to private conversations between client and counsel, not to courtroom activities of which the court could have knowledge. Yet the judge denied the request for new counsel without any inquiry. Here, in contrast, the statement which appellant made at the court’s invitation contained nothing indicating that inquiry might substantiate any ground for bringing in new counsel. There is no holding in Marsden, or in Munoz, that where a defendant offers no [117]reasons in support of his declaration that he is dissatisfied with his appointed attorney it is the responsibility of the judge to interrupt the proceedings and catechize the defendant.
People v. Hidalgo (1978) 22 Cal.3d 826 [150 Cal.Rptr. 780, 587 P.2d 230], and People v. Lewis (1978) 20 Cal.3d 496 [143 Cal.Rptr. 138, 573 P.2d 40], cited by appellant, are similarly to be distinguished on the basis that in both the request for appointment of new counsel was denied without giving the defendant an opportunity to state the reason for the request; indeed the court prevented the defendant from stating his reasons. Here, in contrast, the court invited appellant to speak and heard him out without interruption.
Citing People v. Caudillo (1978) 21 Cal.3d 562 [146 Cal.Rptr. 859, 580 P.2d 274], appellant challenges the findings of the jury that both the rape and the robbery were accompanied by great bodily injury. The court correctly instructed the jury, along lines suggested in CALJIC No. 17.20, that with respect to both counts, “great bodily injury” refers to “significant or substantial bodily injury or damage.” The findings of the jury were well supported by evidence that the victim’s nose had been broken and that she had suffered a deep cut which required suturing. The Attorney General has properly conceded that only one enhancement for great bodily injury is possible. (See In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23].) The judgment must be modified accordingly.
Appellant contends that Penal Code section 654 precludes further trial on the rape and robbery counts after he had been sentenced on the verdict of the first juiy finding him guilty of felonious assault. This contention cannot be sustained. The judgment pronounced on the first verdict was preliminary in nature, and was subject to modification. When all counts had been disposed of, in order for the court to pronounce a judgment which avoided double punishment, the court did appropriately stay the assault count to meet the requirements of section 654. In accepting the verdict on the assault count and then impanelling a new juiy to try the two counts on which there had been jury disagreement, the court proceeded in compliance with the applicable statute (see Pen. Code, § 1160).
The judgment is modified to provide that appellant shall serve only one additional period of confinement for inflicting great bodily injury on the victim. As so modified, the judgment is affirmed.
Caldecott, P. J., concurred.