People v. Thierry CA2/4

Filed 4/30/14 P. v. Thierry CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B243589

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA077040) v.

ALBERT MARTIN THIERRY, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed in part, reversed in part, and remanded. Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

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Albert Martin Thierry, Jr. (appellant) was convicted of second degree robbery and various other crimes. Before sentencing, he asked the court to relieve his retained 1 counsel. The court held two Marsden hearings, and denied his request. Appellant was sentenced to 65 years to life. He argues the court erred in applying Marsden because his counsel was retained, not appointed. Respondent concedes this was error. We agree and reverse the judgment as to the sentence, but affirm the conviction in all other respects. FACTUAL AND PROCEDURAL SUMMARY Appellant was charged with five offenses in July 2011: two counts of second 2 degree robbery (Pen. Code, § 211) within the meaning of section 667.5, subdivision (c) and section 1192.7, subdivision (c); second degree commercial burglary (§ 459); use of tear gas (§ 12403.7, subd. (g)); and grand theft of personal property (§ 487, subd. (a)). The amended information alleged appellant used a firearm or pepper spray in the commission of some offenses and was on parole at the time that all were committed. It also alleged appellant suffered various prior convictions. In November 2011, a jury convicted appellant on all counts. It also found the special allegations to be true, except the firearm allegation that the court later dismissed. At the February 2012 sentencing hearing, appellant’s retained counsel, David Romley, said, “It appears there is a breakdown in the attorney-client relationship. And [appellant] would like to retain new counsel. And I have no objection to that.” Appellant confirmed that he wanted the court to appoint a public defender, to which the court agreed. The court relieved Romley, and appointed Magaly Gil, a public defender, as appellant’s counsel “for sentencing only.” The court granted Gil’s request for a sentencing hearing on March 22. On March 2, 2012, the court stated it had erred “in the manner in which [it] assessed the situation” of appellant’s request to relieve his retained attorney. It held a