People v. Stuart CA5

Filed 1/30/14 P. v. Stuart CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F063514 Plaintiff and Respondent, (Super. Ct. No. F10903408) v.

TORY DWANELL STUART, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge. Geoffrey M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Kane, J.

Defendant Tory Dwanell Stuart was convicted of assault with a deadly weapon. He now argues that the trial court abused its discretion in denying three of his motions for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We disagree. FACTS AND PROCEDURAL HISTORY Stuart confronted Mike Brown in front of Brown’s apartment on May 6, 2010. An accomplice stood behind Brown and placed him in a choke hold. Stuart hit Brown with a large piece of wood. Brown was knocked unconscious and the two men continued to beat and kick him as he lay on the ground. Neighbors appeared and the assailants fled. Brown was hospitalized. He had several facial fractures, some lacerations, a swollen thigh, and a dislocated wrist. His injuries required surgery. The district attorney filed an information charging Stuart with two counts: (1) attempted murder (Pen. Code, §§ 187, 664)1 and (2) assault with a deadly weapon (§ 245, subd. (a)(1)). For both counts, the information included allegations that Stuart personally inflicted great bodily injury. (§ 12022.7, subd. (a).) On April 4, 2011, a jury found Stuart not guilty of count 1 and a mistrial was declared on count 2. On July 5, July 29 and August 16, 2011, before the retrial on count 2, the trial court conducted Marsden hearings at Stuart’s request. At the July 5 hearing, Stuart testified that he believed he and his trial counsel, Amy Guerra, had a breakdown in communication, they could not work together, and he did not trust her. He claimed that the only opportunities he had to talk to her about the case were when he came to court. He also felt Guerra had not conducted an adequate investigation because witnesses he had mentioned to her and her investigator had not been located.