P. v. Arellano
Filed 1/14/13 P.
v. Arellano CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RAUL ARELLANO,
Defendant and Appellant.
D059737
(Super. Ct. No.
SCE279681)
APPEAL
from a judgment of the Superior Court of
County, Lantz Lewis, Judge.
Affirmed.
INTRODUCTION
A
jury convicted Raul Arellano of seven counts of committing a lewd act on a
child under 14 years old involving substantial
1203.066, subd. (a)(8); counts 3-9)
name="_ftnref1" title="">[1]
and one count of unlawful sexual intercourse with a minor more than three years
younger than him (§ 261.5, subd. (c); count 10).
months in prison.
Arellano
appeals, contending we must reverse his convictions for counts 3 through 9
because the victim's generic, contradictory accounts provided
convictions and these convictions violated his right to a unanimous jury. In addition, he contends we must reverse his
conviction for count 10 because his trial counsel provided ineffective
assistance by failing to move under section 995 to dismiss this charge for lack
of jurisdiction. He further contends he
is entitled to a new trial because the trial court did not sufficiently
investigate his motion for replacement counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) or, alternatively, erroneously denied his motion. We conclude each of these contentions lacks
merit and affirm the judgment.
BACKGROUND
In
2006, the then 12-year-old victim lived with Arellano and his wife, Maria, for
a couple of months. Arellano, who was 27
or 28, would pick the victim up from school and they would be home when Maria
returned from work. On one occasion,
Maria arrived home and her bedroom door was locked. After five or ten minutes, the door was
unlocked. Maria found Arellano and the
victim inside. The victim said she was
sleeping. Arellano said he was in the
shower and did not hear Maria knock on the bedroom door. On another occasion, Maria went into the
kitchen and saw Arellano and the victim with their pants down having sex. Maria did not mention either incident when
she testified at Arellano's preliminary hearing because she was scared her
failure to report the incident would cause her to lose custody of her children.
Some
time after these incidents, Arellano apologized to Maria. He told her he tried, but could not stop
having sex with the victim. Maria
subsequently left Arellano.
In
April 2008 Maria and the victim were living with the victim's mother in San Diego. One day, when Maria was on her way home and
about two or three miles away, she saw Arellano drive by in his van. He pulled over and she asked him why he was
at her house or where he was coming from.
She could not recall his response, but when Maria arrived home, the
victim was not there and the victim's mother did not know her whereabouts. When the victim came home a few minutes later,
Maria asked her if she had been with Arellano.
The victim became upset and said, "Yes."
The
victim's mother struck the victim. When
the victim raised her arm and attempted to strike her mother back, Maria called
the police. The victim then locked herself
in the bathroom and said she was not going to speak to anybody.
Two
San Diego police officers responded to Maria's call. The victim came out of the bathroom and
talked with them. She initially denied
ever having sexual contact with Arellano, but then told them she had had sex
with Arellano at his home in El
Cajon at about 4:00 p.m. that day. She said it was
not the first time. The first time was
in the bedroom of Maria and Arellano's apartment, where Maria almost caught
them. About a month later, in January
2007, the day before her 13th birthday, she and Arellano had sex again. She told one of the officers that, from then
on, they had sex once a month until about February 2008 and about once a week
after that. She told the other officer
that, until a couple weeks earlier, they had been having sex twice a
month. The sex occurred at Arellano's
home in El Cajon. The victim told the
officers she was in love with Arellano.
She was calm and did not cry when she discussed their sexual
relationship.
An
El Cajon police officer was called to the victim's home. The victim told the officer Arellano was
Maria's estranged husband. The victim
also told the officer she had been having an ongoing sexual relationship with
Arellano and, during that period, they engaged in consensual vaginal sex once a
week at his home in El Cajon.
Early
the following morning, Maria and the victim's mother took the victim to a
hospital where a child abuse pediatrician examined her vaginal and anal areas
and took swabs from her labia, vagina, and cervix. Arellano was a contributor to DNA in sperm
found on the labia swabs. The victim
told the doctor the last time she engaged in sexual activity was around 4:30 p.m. the prior day.
Approximately
a week later, the victim ran away from home.
Maria sent Arellano a text message stating she knew the victim was with
him, the police were looking for the victim, and Arellano should bring her back
home. A week and a half later, Arellano
contacted Maria and asked her to run away with him because he would be
imprisoned for six years for his conduct with the victim, but Maria
refused.
The
victim returned home about five and a half months later, after police officers
arrested Arellano. The victim was with
Arellano when the officers arrested him and had been with him for much of the
time she was away from home. During her
time with him, when she was still 14 years old, they had sex many times. She continued to have a sexual relationship
with him when she turned 15.
She remained at
home for about six months and ran away again after being subpoenaed and ordered
to appear in court to testify at Arellano's first trial.
ran away once more a couple of weeks afterwards.
When
she returned home again, she was noticeably pregnant. She gave birth to her child in November
2010. The day before Arellano's second
trial, she ran away with the child, who was then two months old.
Because
it appeared the victim was unavailable to testify, her preliminary hearing
testimony was read to the jury. At the
years old, testified she had known Arellano for a year and he was married to
Maria. The victim denied having sexual relations
with Arellano. She only told the police
officers she had sex with Arellano because the police officers pressured her to
talk to them and she did not think she was going to get Arellano in big
trouble. She denied telling the officers
she thought she was in love with Arellano.
Just
before the People planned to rest their case, the victim appeared at
trial. At that time she was 17 years old
and she testified Arellano was the father of her child. The child was conceived in Mexico, where the
victim had stayed with Arellano for six to eight months. She initially testified she first had sex
with Arellano in January 2008, a week before she turned 14. She then quickly changed her testimony and
said she was already 14 when she first had sex with him. She had sex with him once on the day the
police officers came to her home and once, for the first time, the week
prior. Both times were at his mother's
home in Tijuana, Mexico. She said on the
day Maria called the police to their home, she had ditched school, taken the
bus and trolley to Tijuana, had sex with Arellano at his mother's house there,
then returned to San Diego by trolley and bus around 4:00 p.m. or 5:00 p.m.
The
victim admitted she told one of the San Diego police officers the first time she
had sex with Arellano was at Maria and Arellano's apartment and the next time
was the day before her 13th birthday. In
addition, she admitted she told one of the police officers she had been having
sex with Arellano twice a month until a few weeks before Maria summoned the
officers to their home. She also
admitting telling the officers that Arellano would pick her up after school and
also on Saturdays, he did not use a condom, he ejaculated on the bed or paper,
and she thought she was in love with him. She said she lied about having sex with
Arellano before she turned 14 because Maria was "messing with" her
boyfriend and she wanted Maria to think she was "messing around" with
Arellano. She further testified she was
in foster care on her 13th birthday and was not allowed to go anywhere other
than school.
The
victim similarly admitted she told an El Cajon police officer that she had been
having an ongoing, consensual sexual relationship with Arellano for about one
year, she and Arellano had been meeting once a week at Arellano's apartment in
El Cajon to have sex, and they had been having sex twice a month until a couple
of weeks before April 2008. The victim
further admitted lying at the preliminary hearing. She said she did so because she did not want to
get herself in trouble for having sex with him.
Although the
victim lived with her mother and Maria for a couple months before Arellano's
second trial, she became upset with Maria because Maria had been writing
letters to Arellano. The victim
testified she loved Arellano, felt Arellano now belonged to her, and she did
not want to get him in trouble.
DISCUSSION
I
Counts
3 through 9
A
Sufficiency
of the Evidence
Arellano
contends we must reverse his convictions in counts 3 through 9 because the
victim's nonspecific, contradictory accounts of when and how often they had sex
precluded the existence of sufficient evidence to support his convictions. In deciding claims of insufficient evidence
in criminal cases, " 'we review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid
value—from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citations.] The standard of review is the same in cases
in which the People rely mainly on circumstantial evidence. [Citation.]
"Although it is the duty of the jury to acquit a defendant if it
finds that circumstantial evidence is susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is the jury,
not the appellate court which must be convinced of the defendant's guilt beyond
a reasonable doubt. ' "If the circumstances reasonably justify the trier
of fact's findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant a
reversal of the judgment." '
[Citations.]"
[Citation.]' [Citations.] The conviction shall stand 'unless it appears
"that upon no hypothesis whatever is there sufficient substantial evidence
to support [the conviction]." ' "
(People v. Cravens (2012)
53 Cal.4th 500, 507-508.)
A victim's
statements may support a conviction under section 288, subdivision (a), if the
statements "describe the kind of act
or acts committed with sufficient specificity, both to assure that unlawful
conduct indeed has occurred and to differentiate between the various types of
proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or
sodomy). Moreover, the victim must
describe the number of acts committed
with sufficient certainty to support each of the counts alleged in the
information or indictment (e.g., 'twice a month' or 'every time we went
camping'). Finally, the victim must be
able to describe the general time period
in which these acts occurred (e.g., 'the summer before my fourth grade,' or
'during each Sunday morning after he came to live with us'), to assure the acts
were committed within the applicable limitation period. Additional details regarding the time, place
or circumstance of the various assaults may assist in assessing the credibility
or substantiality of the victim's testimony, but are not essential to sustain a
conviction." (People v. Jones (1990) 51 Cal.3d 294, 316 (Jones); accord, People v.
Crow (1994) 28 Cal.App.4th 440, 446 (Crow).)
In
this case, when San Diego police officers responded to the victim's home, the
victim told the first San Diego police officer with whom she spoke that she had
had sexual intercourse with Arellano earlier in the day. She also told the officer she had been having
sexual intercourse with Arellano about once a month from January 2007 until
about February 2008 and then about once a week thereafter. These statements describe the kind of act
committed (sexual intercourse), the number of acts committed (about once a
month), and the general time period in which the acts occurred (from January
2007 to April 2008) with the requisite degree of specificity. Accordingly, these statements provide
sufficient support for Arellano's convictions for counts 3 through 9.
Although
the victim made slightly different statements to two other police officers
regarding the number of acts committed, recanted her various statements at the
preliminary hearing, and then gave completely contradictory testimony at
Arellano's second trial, these discrepancies do not preclude the existence of
substantial evidence to support the jury's verdicts. It is the jury's role to resolve witness
credibility issues. (
721, 728-729.) Here, the jury resolved
the issues related to the victim's credibility by largely accepting as true the
statements she made to the first San Diego police officer with whom she spoke. On appeal, we may not reject witness
statements the jury accepts as true unless the statements are facially
improbable, physically impossible, or demonstrably false without resort to
inferences and deductions. (
As the victim's statements to the first San Diego police officer do not
fall into any of these categories, they are sufficient to support the jury's
verdicts.
B
Unanimous
Jury Verdict
1
As
part of its instructions for counts 1 through 9, the trial court instructed the
jury on the state constitutional requirement for a unanimous jury verdict (Cal.
Const., art I, § 16) with a tailored version of CALCRIM No. 3501. The instruction informed the jury, "The
defendant is charged in counts 1 through 9 with committing a lewd act upon a
child sometime during the period of April 1, 2007, through December 31,
2007. The People, through the District
Attorney, have presented evidence of more than one act to prove the defendant
committed these offenses. You must not
find the defendant guilty unless, one, you agree that the People have proved
that the defendant committed at least one of these acts, and you all agree on
which act he committed for each of the nine charged offenses in counts 1
through 9. Or you all agree that the People
have proved that the defendant committed all of the acts alleged to have
occurred during this time period and
have proved that the defendant committed at least the number of offenses
charged in counts 1 through 9."
(Italics added.) The trial court
later clarified the instruction's time period
reference meant the time period listed in the particular count under
consideration.
2
Arellano
contends that his acquittal on counts 1 and 2 necessarily means the People did
not prove "all of the acts alleged to have occurred" as required by
the latter part of unanimity instruction.
Consequently, he contends his convictions for counts 3 through 9 must be
reversed because they violate his due process right to a unanimous jury
verdict.
Substantially
the same argument was raised and rejected in Crow, supra, 28
Cal.App.4th 440. In that case, the
defendant was tried on eight identical counts of committing lewd and lascivious
acts on a 13-year-old victim during a nine-month period. (Id.
at p. 445.) The jury convicted him of
three of the counts and was unable to reach a verdict on the remaining
counts. (Ibid.) As here, the
defendant argued conviction for fewer than all eight counts deprived him of his
constitutional right to a unanimous
jury. (Id. at pp. 445-446.)
The appellate
court disagreed, explaining, "In the absence of evidence to the contrary,
a jury is presumed to have complied with the instructions given to it.
[Citations.] Here, the jury was
instructed concerning the necessity of unanimity in order to convict. Even in the case of a resident child molester
in which the only evidence presented by the prosecution is of a series of
separate but indistinguishable acts, that instruction is sufficient to protect
a defendant's right to a unanimous jury so long as there is substantial
evidence to support the convictions."
(Crow, supra, 28 Cal.App.4th at p. 446, citing Jones, supra, 51 Cal.3d
at p. 321, fn. omitted.)
Moreover, as
clarified by the trial court, the CALCRIM No. 3501 instruction did not require
the jury to unanimously agree the People proved all allegations in all counts
in order to convict Arellano of any one count.
Rather, the instruction required that in order for the jury to convict
Arellano of a count, the jury had to agree the People proved either that the
defendant committed all of the acts alleged to have occurred during the time
period covered by the count, or that he committed at least one of the acts
alleged to have occurred during the time period covered by the count and which
act or acts. This instruction satisfies
the state constitutional unanimity requirement as either alternative would
result in a unanimous verdict for the count.
Nothing
in Jones, supra, 51 Cal.3d 294, alters our conclusion. The Jones
court specifically sanctioned the type of alternative instruction given by the
trial court, explaining, "In a case in which the evidence indicates the
jurors might disagree as to the particular act defendant committed, the
standard unanimity instruction should be given.
[Citations.] But when there is no
reasonable likelihood of juror disagreement as to particular acts, and the only
question is whether or not the defendant in fact committed all of them, the
jury should be given a modified unanimity instruction which, in addition to
allowing a conviction if the jurors unanimously agree on specific acts, also
allows a conviction if the jury unanimously agrees the defendant committed all
the acts described by the victim. [¶] .
. . 'In either event, a defendant will have his unanimous jury verdict
[citation] and the prosecution will have proven beyond a reasonable doubt that
the defendant committed a specific act, for if the jury believes the defendant
committed all the acts it necessarily believes he committed each specific act [citations].'
" (Id. at pp. 321-322.)
The
requirements in Jones,
to each count so that an acquittal on some counts does not preclude convictions
on other counts. (Crow, supra, 28
Cal.App.4th at pp. 446-447 & fn. 3.)
In fact, in the Jones case,
the jury did not convict the defendant of all of the charged counts. Instead of viewing this circumstance as
evidence the defendant was deprived of jury unanimity, the Supreme Court viewed
it as evidence the defendant benefited from the unanimity instruction because
it showed the jury could and did differentiate between the alleged acts of
molestation. (Id. at pp. 322-323.)
In this case,
there was evidence the victim was in foster care for part of 2007. The jury apparently credited this evidence
enough to have reasonable doubt about whether the victim had sexual encounters
with Arellano in April and May 2007, but otherwise believed her statements
about having had at least monthly sexual encounters with him during the remainder
of 2007. Thus, the jury's verdict in
this case also showed the jury could and did differentiate between the alleged
lewd acts and Arellano benefited from the unanimity instruction.
II
Ineffective
Assistance of Counsel
A
At
Arellano's request, before the prosecution began presenting its case, the trial
court conducted a closed hearing with Arellano and his counsel. During the hearing, Arellano lamented his
counsel's failure to subpoena certain witnesses, including the victim, to
establish his defense. In particular, he
stated he needed the victim to testify to establish that any sexual activity
between them occurred in Tijuana, not El Cajon.
The
trial court explained that the prosecution had subpoenaed the victim to
testify, but she had chosen not to comply with the subpoena. The trial court indicated it would have the
prosecution continue to search for her.
The trial court also suggested that, if Arellano had some way of
contacting her, he should provide the contact information to his attorney.
The
trial court and Arellano then had the following discussion:
"[ARELLANO]: How much time tomorrow¾if she shows up tomorrow, can she show up tomorrow, or is it too
late already?
"THE COURT: No, not at all.
"[ARELLANO]: So I could try to get in contact with them?
"THE COURT: Absolutely.
"[ARELLANO]: Bring them all.
"THE COURT: Use your phone call. Encourage her to come. And any time she's here before we submit the
case to the jury, she'd be allowed to testify.
Okay. If you could track her down."
Later
on the same day, also at Arellano's behest, the trial court held another closed
hearing with Arellano and his counsel.
During the hearing, Arellano again brought up the need for the victim's
testimony. The trial court responded,
"Mr. Arellano, I have a hunch, from the way you discussed the matter with
me, that you might have a chance to get ahold of her. If you think you can get ahold of her and
encourage her to come to court, she'll be allowed to testify. Okay.
Thank you, sir."
After the close
of evidence, before defense counsel began her closing argument, defense counsel
queried whether it would be appropriate for her to comment on the victim's
testimony that any sexual activity with Arellano occurred in Mexico. The trial court ruled such argument would be
inappropriate because jurisdiction is a legal issue for the court, not a
factual issue for the jury. At
Arellano's behest, the trial court then conducted a final closed hearing with
the defendant and defense counsel.
During the hearing, Arellano questioned why the jury would not be
allowed to consider whether any sexual activity between the victim and him
occurred in Mexico. The trial court
explained that the issue of jurisdiction had to be decided by the court, not
the jury. Arellano then asked if he
could take the stand and testify. The
trial court explained it was too late for him to testify because the
presentation of evidence had been completed; however, the issue might be
addressed at some later point. The
record does not show defense counsel raised the jurisdiction issue after the
trial.
B
Arellano
contends we must reverse his conviction in count 10 for violating section
261.5, subdivision (c), because there was evidence the offense occurred in
Mexico and his trial counsel provided ineffective assistance by failing to seek
dismissal of this count. " 'The law
governing defendant's claim is settled.
"A criminal defendant is guaranteed the right to the assistance of
counsel by both the state and federal Constitutions. [Citations.]
'Construed in light of its purpose, the right entitles the defendant not
to some bare assistance but rather to effective
assistance.' " [Citations.] It is defendant's burden to demonstrate the
inadequacy of trial counsel. [Citation.] We have summarized defendant's burden as
follows: " 'In order to demonstrate
ineffective assistance of counsel, a defendant must first show counsel's
performance was "deficient" because his "representation fell
below an objective standard of reasonableness . . . under
prevailing professional norms."
[Citations.] Second, he must also
show prejudice flowing from counsel's performance or lack thereof. [Citation.]
Prejudice is shown when there is a "reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." ' " ' " (
875-876.) "If a claim of
ineffective assistance of counsel can be determined on the ground of lack of
prejudice, a court need not decide whether counsel's performance was
deficient." (In re Crew (2011) 52 Cal.4th 126, 150.)
Here,
at the point the defendant first raised the jurisdiction issue, there was no
evidentiary support for it. The victim's
preliminary hearing testimony indicated no sexual activity ever occurred
between her and Arellano, and her statements to police officers indicated the
sexual activity charged in count 10 occurred at Arellano's home in El
Cajon. It was not until the victim
appeared as the last witness on the last day of trial that there was any
evidence the sexual activity charged in count 10 may have occurred in Mexico. Thus, Arellano has not established there was
a reasonable probability a challenge to the trial court's jurisdiction before
the victim testified at trial would have resulted in dismissal of the count.
Although
the trial court precluded defense counsel from raising the jurisdiction issue
before the jury, the trial court alluded to the possibility defense counsel
could raise the issue in a posttrial proceeding. The record is silent as to why defense
counsel did not do so. "[W]e must reject
a claim of ineffective assistance of counsel if the record 'sheds no light on
why counsel acted or failed to act in the manner
challenged . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation . . . .' " (People
v. Riel (2000) 22 Cal.4th 1153, 1216-1217.)
One possible, satisfactory explanation for defense counsel's inaction is
that defense counsel may have been ethically constrained from pursuing
posttrial relief based on the victim's trial testimony. Arellano's exchanges with the court during
the closed hearings, the victim's sudden appearance at the end of the trial,
her professed love for Arellano, and the significant conflicts among her trial
testimony, her preliminary hearing testimony, and her statements to police
officers suggest the victim's trial testimony may have been at least partially
perjured. If it was and if defense
counsel knew it was, defense counsel would have been ethically unable to pursue
posttrial relief based on the
testimony. (See, e.g.,
Even if defense
counsel had no satisfactory explanation for her inaction, the prosecution need
only prove jurisdiction by a preponderance of the evidence. (People
v. Betts (2005) 34 Cal.4th 1039, 1053; People
v. Cavanaugh (1955) 44 Cal.2d 252, 262.)
The victim's initial statements to police, which were corroborated by
her subsequent statements to a pediatrician and by Maria's testimony about
running into Arellano near the victim's home, meet this burden. The victim's trial testimony provides the
only countervailing evidence. The jury
implicitly found this evidence incredible and, for the reasons discussed above,
the jury's implicit finding is well-supported.
Thus, Arellano also has not established there is a reasonable probability
a posttrial challenge to the trial court's jurisdiction would have resulted in
dismissal of the count.
III
Failure
to Adequately Investigate Marsden Motion or
Erroneous
Denial of Marsden Motion
A
In
addition to the three closed hearings described in part II.A,
closed hearing under Marsden,
request for replacement counsel (Marsden
motion). During this hearing, which was
sequentially the third of four closed hearings the trial court conducted at
Arellano's request, Arellano related dissatisfaction with defense counsel's
representation because she did not subpoena three witnesses he wanted her to
call, she did not ask Maria the questions he wanted asked, she did not provide
him with discovery, and she did not meet with him in jail to go over the
discovery and the questions he wanted asked.
He felt he and defense counsel did not get along because she was not
taking his wishes into consideration and because she told his 15-year-old son
it would better for him not to be in the courtroom during the trial. Arellano conveyed these points in
approximately two pages of reporter's transcript, at which point the trial
court interjected.
The
trial court indicated that, due to the nature of the allegations against
Arellano, it could not fault defense counsel or find she was not appropriately
representing Arellano for suggesting Arellano's son not be in the
courtroom. However, the trial court stated
it would not exclude Arellano's son from the courtroom if Arellano wanted him
to be there and if his son wanted to be there.
The trial court subsequently had someone inform Arellano's son he could
come into the courtroom.
Regarding
the three witnesses Arellano wanted called and the questions Arellano wanted
asked, the trial court indicated he could not find defense counsel was not
doing a good job because she had determined certain witnesses should not be
called or certain questions should be asked differently or not at all. The trial court reminded Arellano they
discussed the three witnesses in closed hearings the previous day.
During
those hearings, Arellano informed the court that two of the witnesses were
brothers who had lived with Arellano and Maria and were purportedly always with
Arellano. One of them was the victim's
boyfriend and one was with Arellano the day Maria said she saw Arellano in his
truck. The other was a friend of the
victim's, who purportedly had an e-mail message in which the victim confessed
"so many things." The victim's
friend also could purportedly confirm the victim had a boyfriend during the
relevant time period and the victim was with her boyfriend, not Arellano.
Defense
counsel interviewed these witnesses and determined at least some of them were
not telling the truth. Consequently, she
was unwilling to put them on the stand.
In addition, she determined one of the brother's testimony was
irrelevant and the other brother, who was in juvenile detention at the time of
his interview, was "very low functioning" and had difficulty
processing and answering her questions.
Furthermore, the victim's friend never mentioned having a relevant
e-mail message and she provided no other relevant information.
Finally,
regarding the communication difficulties, the trial court noted it had observed
reasonable communication between defense counsel and Arellano during the trial,
including defense counsel looking at and asking questions the defendant gave
her. Defense counsel also confirmed her
communication with Arellano was sufficient for her to vigorously represent him.
B
Arellano
contends he is entitled to a new trial because the trial court denied his
sufficiently thorough investigation into its merits. He alternatively contends the trial court
erroneously denied his motion.
" '
"When a defendant seeks to discharge his appointed counsel and substitute
another attorney, and asserts inadequate representation, the trial court must
permit the defendant to explain the basis of his contention and to relate
specific instances of the attorney's inadequate performance. [Citation.]
A defendant is entitled to relief if the record clearly shows that the
first appointed attorney is not providing adequate representation [citation] or
that defendant and counsel have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result." ' [Citation.]
The decision whether to grant a requested substitution is within the
discretion of the trial court; appellate courts will not find an abuse of that
discretion unless the failure to remove appointed counsel and appoint
replacement counsel would 'substantially impair' the defendant's right to
effective assistance of counsel." ' "
(People v. Vines,
1
Regarding
Arellano's first contention, he correctly points out a trial court cannot
thoughtfully exercise its discretion to grant or deny a Marsden motion without listening to a defendant's reasons for
requesting a change of attorneys. (
If the trial court does not inquire into the defendant's reasons and
denies a Marsden motion based solely
on courtroom observations, the trial court abuses its discretion. (Id.
at p. 124.)
Nonetheless,
" ' "a Marsden hearing is
not a full-blown adversarial proceeding, but an informal hearing in which the
court ascertains the nature of the defendant's allegations regarding the
defects in counsel's representation and decides whether the allegations have
sufficient substance to warrant counsel's replacement." ' " (People
v. Gutierrez (2009) 45 Cal.4th 789, 803.)
A trial court fulfills its inquiry obligation if it gives the defendant
an opportunity to state all of his or her complaints and the trial court
listens to the complaints. (
970, 980; People v. Penrod (1980) 112
Cal.App.3d 738, 745; People v. Williamson
(1985) 172 Cal.App.3d 737, 745.)
The
record demonstrates the trial court fulfilled its inquiry obligation in this
case. Specifically, the record shows the
trial court conducted three closed hearings during the two-day trial to hear
Arellano's complaints about defense counsel.
counsel did not call three witnesses he wanted called, she did not provide him
with requested discovery, she did not ask the prosecution witnesses,
particularly Maria, the questions he wanted asked, and she showed she disliked
him and could not effectively communicate with him by telling his teenage son
he should not attend the trial. The
trial court demonstrated it had listened to Arellano's complaints by attempting
to summarize them, clarify them and, in some instances, immediately address
them (i.e., by informing Arellano the victim would be allowed to testify if she
appeared and his son would be permitted in the courtroom).
At each hearing,
Arellano tended to express himself in a rambling, emotional manner and, by the
third closed hearing, his remarks were largely repetitive. While the trial court interrupted Arellano
twice during the third closed hearing to summarize and sort through Arellano's
complaints, these interruptions did not violate the trial court's inquiry duty
because both occurred when Arellano was reiterating a point he had previously
made. "[A] defendant is not
entitled to keep repeating and renewing complaints that the court has already
heard." (People v. Vera, supra,
122 Cal.App.4th at p. 980.)
People v. Lewis (1978) 20
Cal.3d 496 (Lewis) and
2 Cal.App.4th 1654 (Ivans), upon
which Arellano relies, are both distinguishable. In Lewis,
the trial court denied the defendant's Marsden
motion without giving the defendant any opportunity to state the reasons for
the motion. (Lewis, supra, at pp.
498-499.) In this case, the trial court
gave Arellano three opportunities to state the reasons for his dissatisfaction
with counsel.
Similarly, in
articulated only some of the reasons for his Marsden motion and the trial court denied the motion without
inquiring into defendant's other reasons.
(Ivans, at p. 1666.) Conversely, Arellano was repeating himself
when the trial court interrupted him and began addressing his complaints. Thus, unlike in Ivans, the record does
not support a conclusion Arellano had unstated reasons for his
failed to uncover and consider.
C
Arellano
alternatively contends the trial court erroneously denied his
Arellano's
primary complaints about defense counsel were that she declined to call three
witnesses he wanted called
name="_ftnref5" title="">[5]
and failed to ask questions of prosecution witnesses, particularly Maria, he
wanted asked. He was also upset defense
counsel asked his teenage son not to be in the courtroom during the trial. In Arellano's view, defense counsel's actions
demonstrated her dislike for him and their inability to effectively
communicate.
However, as the
trial court recognized, Arellano's disagreements with defense counsel were
tactical disagreements. "Tactical
disagreements between the defendant and his attorney do not by themselves
constitute an 'irreconcilable conflict.'
'When a defendant chooses to be represented by professional counsel,
that counsel is "captain of the ship" and can make all but a few
fundamental decisions for the defendant.' " (People v.
Welch (1999) 20 Cal.4th 701, 728-729.)
Moreover,
during the trial, the trial court personally observed meaningful communication
between Arellano and defense counsel. Defense counsel also confirmed her tactical
disagreements with Arellano did not prevent her from vigorously representing
him and, in fact, the record, including Arellano's acquittal of counts 1 and 2,
shows she did so. Accordingly, we
conclude Arellano has not demonstrated the trial court abused its discretion by
denying his Marsden motion.
DISPOSITION
The
judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HALLER, J.
IRION, J.
name="_ftn1" title="">[1] Further statutory references
are also to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] The jury acquitted
Arellano of two other counts of committing a lewd act on a child under 14 years
old involving substantial sexual conduct (counts 1 & 2) and one count of
committing a lewd act upon a child 14 or 15 years of age (§ 288, subd. (c)(1);
count 11). Counts 1 and 2 involved
conduct occurring in April and May 2007, respectively. Counts 3 through 9 involved conduct occurring
in June through December 2007, respectively.
Counts 10 and 11 were alternative charges and the trial court instructed
the jury that if it found Arellano guilty of one of the charges, it had to find
him not guilty of the other.
