People v. Owens CA2/7

Filed 11/15/22 P. v. Owens CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B318208
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA497687)
v.
MARVIN LAMAR OWENS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Frederick N. Wapner, Judge. Affirmed.
Miriam K. Billington, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________
Marvin Lamar Owens appeals from the judgment entered
following his conviction after a jury trial of willfully inflicting
corporal injury on a cohabitant or former cohabitant (Pen. Code,
§ 273.5, subd. (a)),1 with a true finding by the jury that Owens
had personally inflicted great bodily injury (§ 12022.7, subd. (e));
battery with serious bodily injury (§ 243, subd. (d)); and contempt
of court (violation of a domestic violence restraining order) (§ 166,
subd. (c)(1)). No arguable issues have been identified following
review of the record by Owens’s appointed appellate counsel. We
also have identified no arguable issues after our own independent
review of the record and analysis of the contentions presented by
Owens in a handwritten supplemental submission. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at trial established that Owens and
Wannetta W. had an on-and-off dating relationship for an
extended period (approximately 16 years). They often lived
together. There were multiple instances of domestic abuse
during their relationship, although Wannetta did not report most
of them because she both cared for Owens and was afraid of him.
On August 9, 2021 Owens and Wannetta lived together on
property owned by Wannetta’s grandmother. Wannetta testified
that, when Owens came home on that day, he asked her why
their neighbor was outside with the police. (Owens had had an
argument with that neighbor several days earlier.) Wannetta,
who was in bed, said she did not know. Owens slapped Wannetta
three times, saying “Bitch, stop playing with me.” Wannetta
walked to the living room to try to end the encounter. Owens
1 Statutory references are to this code unless otherwise
stated.
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followed and stood over Wannetta as she sat on the couch. When
Owens tried to slap Wannetta again, she bit him. He responded
angrily, punching her hard three times in the face with a closed
fist. Wannetta ran outside and was able to call the 911
emergency number.
Los Angeles Police Officer Felipe Rocha responded to
Wannetta’s call. In his testimony Rocha described Wannetta’s
injuries. During his investigation Rocha determined there was a
valid, outstanding restraining order prohibiting Owens from
making contact with Wannetta.
The day after the incident Wannetta went to the hospital,
told the examining physician she thought her nose was broken
and had X-rays taken. Medical records confirmed the broken
nose. According to Wannetta, it took approximately three weeks
to recover from her injuries.
Two other Los Angeles police officers (Keith Sutliff and
Aldwin Vicencio) testified about their contact with Wannetta
following earlier incidents of domestic violence.
Owens did not testify on his own behalf, and the defense
presented no other witnesses. After being fully advised of his
rights, Owens admitted pursuant to section 273.5, subdivision (f),
that he had been convicted on May 11, 2015 of violating
section 273.5, subdivision (a).
Owens was sentenced to an eight-year state prison term:
the middle term of four years for inflicting corporal injury on a
cohabitant or former cohabitant within seven years of a previous
conviction for violating section 273.5, subdivision (a) (§ 273.5,
subd. (f)), plus the middle term of four years for the domestic-
violence-related great bodily injury enhancement (§ 12022.7,
subd. (e)). The court imposed and stayed pursuant to section 654
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the middle term of three years for aggravated battery (§ 243,
subd. (d)) and imposed a concurrent term of 364 days in county
jail for violating the domestic violence restraining order (§ 166,
subd. (c)(1)).
Owens filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent Owens in this appeal.
After reviewing the record, counsel filed a brief raising no issues.
Appointed counsel advised Owens on October 12, 2022 that he
could personally submit any contentions or issues he wanted the
court to consider.
On October 28, 2022 we received nine handwritten pages
from Owens, four of which appear to be a copy of a document sent
by Owens to his appellate counsel suggesting several possible
issues for appeal and the balance of which is Owens’s version of
the incident that resulted in his convictions. Owens’s claims lack
merit.
First, Owens points out that the trial court denied his
request to replace his appointed counsel, suggesting this was
error. It was not.
On the day scheduled for the start of jury selection, the
court held a hearing pursuant to People v. Marsden (1970)
2 Cal.3d 118 to consider Owens’s request for a new attorney.
Asked what it was that his current counsel was doing or not
doing that concerned him, Owens responded that he did not
believe she was a bad lawyer, but thought she was too busy for
his case and, specifically, had not communicated sufficiently with
him while the case was pending. Counsel acknowledged she was
busy, but told the court she and Owens had discussed the case,
his possible defenses, his exposure and possible plea bargains.
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According to counsel, there was nothing more to discuss other
than the ongoing trial process, which was about to start. And she
observed that, now that trial was beginning, Owens’s case was
the only matter on which she would be working. The court
denied Owens’s request for new counsel, explaining that his
relationship with counsel had not broken down, and there was no
indication counsel could not, or would not, adequately represent
him at trial. This record does not establish even an arguable
abuse of discretion. (See People v. Streeter (2012) 54 Cal.4th 205,
230 [“We review the denial of a Marsden motion for abuse of
discretion. [Citation.] Denial is not an abuse of discretion unless
the defendant has shown that a failure to replace counsel would
substantially impair the defendant’s right to assistance of
counsel,” internal quotation marks omitted].)
Second, Owens contends Officer Rocha was impermissibly
allowed to testify as a medical expert. (He does not identify any
particular testimony he contends should not have been
permitted.) Owens’s counsel objected on that ground when the
prosecutor asked Rocha, who was describing Wannetta’s injuries,
how long it takes for swelling and bruising to develop on a
person. The court sustained the objection. The prosecutor then
asked Rocha, based on his training and 13 years of experience in
responding to domestic violence calls, whether it was true that
some injuries do not develop as fast as others. There was no
objection, and Rocha responded, “Correct.” At that point the
prosecutor returned to questioning Rocha about what he actually
observed when interviewing Wannetta. Absent a further
objection by Owens’s counsel, the court properly permitted Rocha
to answer the question. In any event, in context there is no
reasonable possibility that this single answer could have
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prejudiced Owens. (See Evid. Code, § 353 [erroneous admission
of evidence is not grounds for reversal unless the error
complained of resulted in a miscarriage of justice].)
Third, Owens questions the sentence imposed for violating
section 273.5, subdivision (a), contending his prior conviction was
more than seven years old and the court had said it was imposing
the middle term pursuant to section 273.5, subdivision (a), which
would be three years, not four years. As discussed, however,
Owens admitted after being fully advised of his rights that he
had been convicted of a prior offense under section 273.5,
subdivision (a), on May 11, 2015, six years three months prior to
the August 9, 2021 aggravated assault. In addition, as part of its
advisal before Owens admitted the prior conviction, the court
explained the sentencing triad for violating section 273.5,
subdivision (a), with a qualifying former conviction pursuant to
section 273.5, subdivision (f), was two, four or five years, rather
than two, three or four years. The court specifically asked Owens
whether he understood the sentencing consequences of admitting
the prior conviction, and Owens confirmed he did.2
Fourth, Owens complains defense counsel should have
cross-examined Wannetta about her motive in reporting the
August 2021 assault and Officer Rocha about purported
inconsistencies between his testimony and details in the police
report he prepared. Owens also suggests Wannetta and Rocha
2 When imposing sentence, the court stated count 1 was for
violating section 273.5, subdivision (a), and then said it was
imposing the middle term, four years. It did not say it was
imposing the middle term of the subdivision (a) triad, rather than
the subdivision (f) triad, which, as had been previously explained
to Owens, was applicable because he had a prior conviction
within seven years.
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had a personal relationship of some sort and implies Wannetta
and Rocha should have been questioned about that, as well.
To the extent Owens’s comments are construed to be a
claim of ineffective assistance of counsel, the record in this direct
appeal falls far short of supporting that claim. As the Supreme
Court explained in People v. Mickel (2016) 2 Cal.5th 181, 198,
“[C]ertain practical constraints make it more difficult to address
ineffective assistance claims on direct appeal rather than in the
context of a habeas corpus proceeding. [Citations.] The record on
appeal may not explain why counsel chose to act as he or she did.
Under those circumstances, a reviewing court has no basis on
which to determine whether counsel had a legitimate reason for
making a particular decision, or whether counsel’s actions or
failure to take certain actions were objectively unreasonable.
[Citation.] [¶] Moreover, we begin with the presumption that
counsel’s actions fall within the broad range of reasonableness,
and afford ‘great deference to counsel’s tactical decisions.’
[Citation.] Accordingly, we have characterized defendant’s
burden as ‘difficult to carry on direct appeal,’ as a reviewing court
will reverse a conviction based on ineffective assistance of counsel
on direct appeal only if there is affirmative evidence that counsel
had ‘“‘no rational tactical purpose’”’ for an action or omission.”
Finally, because Owens elected not to testify, his four-page
narrative with his version of the August 9, 2021 incident,
including his claim he did not strike Wannetta, does not present
any colorable issue on appeal.
We have examined the record and are satisfied Owens’s
appellate counsel has fully complied with the responsibilities of
counsel and no arguable issues exist. (Smith v. Robbins (2000)
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528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-
119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
HOWARD, J.*
* Judge of the Marin County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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