People v. Thierry CA2/4

Filed 1/20/16 P. v. Thierry CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B261839

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

ALBERT MARTIN THIERRY, JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed. Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

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In this appeal from a post-remand sentencing order, defendant Albert Martin Thierry, Jr., contends the trial court exhibited personal animosity and bias, and his attorney was ineffective in failing to bring a challenge for cause. (See Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii) [permitting challenge for cause where “person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial”].) Finding no evidence of judicial bias or ineffective assistance of counsel, we affirm.

FACTUAL AND PROCEDURAL BACKROUND In November 2011, defendant was convicted by a jury of two counts of second degree robbery and other crimes, and found to have served prior prison terms and to have suffered various prior convictions. The trial court imposed an indeterminate term of 65 years to life, consisting of two consecutive terms of 25 years to life, plus three consecutive five-year enhancements. The jury verdict was affirmed in a prior appeal, but the sentence was reversed with directions to vacate the sentence and conduct an inquiry into defendant’s request to relieve his retained attorney consistent with the standards set out in People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz). (People v. Thierry (April 30, 2014, No. B243589) [nonpub. opn.].) After the remittitur issued, the trial court vacated the sentence and reconsidered defendant’s request to relieve his retained counsel under Ortiz. The trial court acknowledged that People v. Marsden (1970) 2 Cal.3d 118 (Marsden), which applies to dismissals of appointed rather than retained counsel, was inapplicable, and attributed its erroneous reliance on Marsden to its confusion as to whether defendant’s trial attorney was appointed or retained. The trial court questioned the timeliness of defendant’s request for an appointed attorney. The court appointed a bar panel attorney, Joseph Walsh, to provide briefing on this issue. After receiving the requested briefing, the court appointed Mr. Walsh to represent defendant at the sentencing hearing. Mr. Walsh moved to strike defendant’s prior felony strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and requested a sentence of 20