People v. Bingham CA1/4

Filed 5/13/14 P. v. Bingham CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION 4

THE PEOPLE, Plaintiff and Respondent, A138766 v. FRANKLIN BINGHAM, (Alameda County Super. Ct. No. H51168) Defendant and Appellant.

While on trial for unlawfully taking a vehicle, defendant Franklin Bingham sought to replace his appointed attorney because the attorney did not plan to call any witnesses who Bingham claimed would provide an alibi. The trial court denied Bingham’s request, and Bingham was convicted. Bingham sought to replace his attorney again before sentencing, and the trial court again denied his request. Bingham argues on appeal that the trial court abused its discretion in denying both motions. We disagree and affirm his conviction. But we agree with Bingham and respondent that the trial court incorrectly calculated Bingham’s presentence custody credits, and we therefore remand to the trial court to recalculate them. I. FACTUAL AND PROCEDURAL BACKGROUND On the morning of June 13, 2011, a Union City resident (the victim) woke up to find his car missing, and he reported it to the police. The following evening, around 6:30 p.m., a motorist driving a different car was hit from behind by a person driving the

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victim’s stolen car. The driver of the stolen car drove off, and the motorist who had been hit followed the stolen car and called 911. While on the phone with 911, the motorist saw a man (who the motorist identified as Bingham both before and at trial) get out of the car, retrieve a backpack from the trunk, and walk away, abandoning the vehicle in the middle of the road. The man then dropped the backpack in a bush and fled the area on foot. Police responded and discovered that the abandoned car had been reported stolen by the victim the day before. Officers searched the car and found a receipt from a purchase made at a Fremont convenience store earlier on the day of the accident. The receipt revealed the last four digits of the card number used for the purchase. Officers went to the convenience store and viewed surveillance footage that corresponded to the time on the receipt. Using a cell phone, an officer took a photo of a person who appeared on the videotape at the time matched to that on the receipt, and this person was later identified as Bingham. Officers also recovered latent fingerprints from the rear-view mirror of the stolen car, and two of the prints were matched to Bingham. Around 9:00 on the same evening of the accident, police were called to a residence because a fight had broken out between Bingham and a man named Brian Winton. Bingham had left the residence by the time the police arrived. But around 9:30, an officer saw Bingham in the convenience store listed on the receipt recovered from the abandoned car, which was near the residence, and arrested him. Police found a card in Bingham’s pocket that had the same last four digits as those found on the convenience- store receipt. Bingham was ultimately charged with unlawfully taking a vehicle in connection with the stolen car and attempted murder in connection with the fight with Winton. The two counts were charged in separate cases, and the attempted-murder case is not the subject of this appeal. After the prosecution presented its case but right before it rested, Bingham requested a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), seeking to discharge his appointed counsel and substitute another attorney. Bingham’s complaint