People v. Kirk CA1/1

Filed 9/11/14 P. v. Kirk CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A138871 v. LYNWOOD ALLAN KIRK, (San Mateo County Super. Ct. No. SC065808A) Defendant and Appellant.

INTRODUCTION Lynwood Allan Kirk appeals his conviction, following a no contest plea, of kidnapping (Pen. Code, § 207, subd. (a))1 and infliction of corporeal injury on a cohabitant (§ 273.5, subd. (a)). He maintains the trial court erred by not thoroughly inquiring about and subsequently denying his Faretta2 motion, failing to conduct a thorough Marsden3 motion, and denying his motion for continuance.4 We conclude none of these claims have merit, and affirm the judgment.

1 All further statutory references are to the Penal Code. 2 Faretta v. California (1975) 422 U.S. 808 (Faretta). 3 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). 4 Defendant also maintained in his opening brief he was entitled to additional custody credits. In his reply brief, he acknowledged “[h]aving obtained the relief sought in the Opening Brief” after filing a section 1237.1 motion in the trial court, and therefore “[withdrew] this claim” even though he “[was] not and has never been in agreement with the credits.”

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PROCEDURAL AND FACTUAL BACKGROUND We set forth only those facts pertinent to the issues raised on appeal. The San Mateo County District Attorney charged defendant with seven counts arising from incidents in November 2007: kidnapping (§ 207, subd. (a)), infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)), false imprisonment (§ 236), two counts of violation of a court order (§ 136.2), attempting to dissuade a witness (§ 136.1, subd. (b)(2)), and resisting arrest (§ 148, subd. (a)(1)). The amended information alleged the kidnapping and dissuading a witness counts were considered serious felonies (§ 1192.7, subd. (c)(20) & (37)), and defendant had a prior conviction of infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)), a prior strike conviction (§§ 1170.12, subd. (c)(1), 667, subd. (a)) and had served a prior prison term (§ 667.5, subd. (b).). At defendant’s request, the trial court continued his jury trial five times. Trial was set for August 30, 2010, but defendant failed to appear and the trial court issued a bench warrant. After defendant appeared, the trial court granted his sixth continuance, until July 11, 2011. On the new trial date, defendant moved for a seventh continuance because he wanted to make a Marsden motion. The trial court continued the trial until the afternoon to hold a Marsden hearing. The court subsequently denied the motion and request for yet a further continuance to hire a new attorney. Defendant failed to appear the next day for trial, and the trial court issued another bench warrant. Eight months later, it was determined defendant was in custody at the San Francisco county jail, and the trial court ordered him transferred to San Mateo, and set trial for April 30, 2012. Defense counsel then declared a doubt as to defendant’s competence under sections 1367 and 1368. About three months later, the trial court found defendant competent, and reset trial for November 5, 2012. A few weeks before the new trial date, defendant moved for an eighth continuance, again claiming he wanted to hire a new attorney. By this time, defendant was being represented by his fourth attorney. On October 23, 2012, the trial court denied the motion to continue the trial date, but set a Marsden hearing for the following day.