P. v. Rankin 3/30/11 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C065011

Case Date: 06/16/2011

Preview:Filed 3/30/11

P. v. Rankin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, Plaintiff and Respondent, v. GEORGE DAVID RANKIN, Defendant and Appellant. C065011 (Super. Ct. No. CM031684)

Defendant George David Rankin pleaded no contest to possession for sale of methamphetamine and possession for sale of marijuana. He contends on appeal that the trial court erred

by not holding a third Marsden1 hearing when he sought to

1

People v. Marsden (1970) 2 Cal.3d 118, 123-126 (Marsden), held that when a criminal defendant seeks a new attorney based upon a claim that his appointed counsel has not provided competent representation, the trial court must inquire into the reasons for the defendants dissatisfaction with counsel. 1

withdraw his plea.

We conclude the trial court did not err in

declining to hold a third Marsden hearing after previously investigating defendants similar complaints about his attorney in two prior hearings. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND Two police officers observed defendant shortly before 1:00 a.m. driving a pickup truck that appeared to have been in a recent traffic collision. According to one of the officers, the

truck "was barely running, there was smoke coming from it, [and] there was [sic] shrubs hanging from the front of it." On closer

examination, the officer also noticed "huge gashes in the hood," "transmission and radiator fluid leaking onto the ground," and other dents on the truck. Defendant told the officer he had not

been in an accident and that "the damage to the vehicle was probably done before he borrowed it from the owner." Another officer smelled a strong odor of marijuana coming from the cab of the truck, and a search of a backpack found on the passenger floorboard uncovered several baggies of methamphetamine and marijuana, as well as "indicia of sales." Defendant denied that the backpack belonged to him. However,

the registered owner of the truck, who was called to the scene, denied any knowledge of the backpack. The owner also stated he

had loaned the vehicle to defendant about an hour earlier and there had been no damage to it at that time. Another witness

said defendant had a backpack when he borrowed the truck.

2

Defendant was charged with possession for sale of methamphetamine and marijuana, with enhancements for two prior prison terms. Prior to the preliminary examination, defendants trial attorney filed a motion to suppress evidence. At the conclusion

of the preliminary hearing, the trial court denied the motion, ruling that defendant did not have a reasonable expectation of privacy in the backpack and that, in any event, "the totality of the circumstances supports the reasonableness of the search." At the next hearing, defendant made a motion to relieve his court-appointed attorney. During an in camera hearing,

defendant complained that he did not feel his attorney was prepared for the preliminary hearing and that, as a result, the suppression motion was denied. number of other complaints: In addition, defendant raised a

he had not received a copy of the

discovery; audio and video tapes of the incident had not been viewed; they did not have a "private investigator"; and his attorney did not call "the other witness citizen" to testify at the preliminary hearing on the issue of consent to search the truck. Defendant informed the court that he wanted to file

several motions, including a motion for a private investigator, a discovery motion, and a Pitchess2 motion. After the defense

attorney responded to each of defendants complaints, defendant

2

A Pitchess motion seeks discovery of peace officer personnel records and is required to set forth the materiality of such records to the subject matter of the pending litigation. (Evid. Code,

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