P. v. Dellarusso





















Filed 5/22/13 P. v. Dellarusso CA4/3









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. JENNIFER ALICE DELLARUSSO, Defendant and Appellant.

G046657 (Super. Ct. No. 10WF2385) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, John Nho Trong Nguyen, Judge. Affirmed.

Kevin Smith, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Anthony Da Silva and Theodore M. Cropley,
Deputy Attorneys General, for Plaintiff and Respondent.



*
* *

A jury convicted
defendant Jennifer Alice Dellarusso of felony vandalism with a finding the
damage exceeded $400. She admitted
serving a prior prison term (Pen. Code, § 667.5, subd. (b)) and the trial
court sentenced her to 3 years in prison, but directed she serve 6 months in
county jail and the remainder of the term on mandatory supervision. She appeals claiming the trial court erred by
(1) denying a motion to discharge appointed counsel (People v. Marsden (1970) 2 Cal.3d 118; Marsden motion), and (2) ruling the prosecution could impeach a potential
defense witness with evidence of the conduct underlying a pending drug
trafficking criminal charge. Finding no error, we affirm the
judgment.



FACTS



Around
2:00 a.m., police officers received a
dispatch reporting people spray painting at a Boys and Girls Club. Arriving officers stopped and arrested two
persons, Dean Castillo and Rochelle Erb.


The
officers also saw defendant running along a line of trees that separated the
club from a park. Officer Christopher
Garcia ordered defendant to stop, but she changed direction and kept
running. Eventually, she complied with
Garcia’s demand. Upon stopping,
defendant dropped a blue backpack. On
her hands, defendant wore latex gloves stained with what appeared to be fresh
red paint. Inside the backpack, Garcia
found 10 spray paint cans, including 2 of red paint that had been recently
used.

At
the police station, defendant waived her rights and agreed to speak with
Garcia. She admitted “hanging out” with
Castillo and Erb, but denied wearing latex gloves. When asked why she had a backpack containing
cans of spray paint, defendant “said something along the lines [of], I wanted
to tag, but I didn’t vandalize anything.”


On cross-examination, Garcia acknowledged
the dispatch report referred to two people, one male and one female, dressed in
black and using spray paint.

Officer
Gordon Downing, the officer in charge of the investigation, walked around the
club’s soccer field, discovering fresh red paint on a wall and a discarded
latex glove similar to those worn by defendant.
Another latex glove was later discovered on Erb. Downing testified dispatch reported “several
subjects” spray painting at the club. On
cross-examination, he described the backpack as black in color.

The
club spent over $900 to repair the damage.


Defendant
testified she, along with her teenage son and a friend named Jimmy, went to the
park adjacent to the club that night to play with a glow-in-the-dark
Frisbee. She claimed she was wearing a
blue sweatshirt and blue jeans.
Defendant admitted Castillo and Erb had been at her home earlier in the
evening, but denied accompanying them to the club or seeing them until after
the police arrested her.

While
at the park, defendant claimed she spoke with two people named Sean and
Dylan. After they left, defendant found
a backpack containing cans of spray paint.
She assumed Sean and Dylan left the backpack. She picked up the backpack and some of the
cans fell out of it. Defendant replaced
the cans, but noticed some of them lacked caps and were covered in red
paint. She used latex gloves she found
inside the backpack to pick up the cans.
After taking possession of the backpack, defendant saw the spotlight
from a police helicopter and heard a lot of commotion. Acknowledging her prior criminal record,
defendant testified she started running because she “knew the situation.” Defendant denied spraying graffiti or seeing
anyone doing so. She conceded telling
Garcia that she was tagging, but claimed she used a sarcastic tone of
voice.



DISCUSSION



>1.
Denial of Defendant’s Marsden Motion

a. Background

Downing was the
prosecution’s second witness and the first police officer

to
testify. After Downing completed his
testimony, defendant asked to speak with the trial judge. Her attorney explained defendant “would like
to raise issues with the court that could be construed as a >Marsden type of motion
. . . .” (Italics
added.) Excusing the prosecutor, the
trial court conducted a hearing on defendant’s request.

Defendant complained
defense counsel’s cross-examination of Downing “didn’t
. . . advance anything for my case,” insisting that “on more
than ten occasions” Downing’s testimony differed from the statements contained
in his police report. Defense counsel
acknowledged “what [Downing] said in court is not what he had in his report,
more than ten times.” Defendant then
continued, “[t]hat’s a major concern for my case. The jury is not getting an adequate
description of exactly what went down to a make a fair decision on my
behalf.”

Commenting on defense
counsel’s “great reputation for being an excellent lawyer,” the trial judge
concluded, “I cannot say that there is any deficiency, in my view, in his
performance. You have the knowledge of
whatever you have told me, but I cannot comment on his strategy. The lawyer has to have the right to use his
skills and his knowledge of the facts, the law and to conduct the trial in
whatever way he deems best to defend you.”


While acknowledging
defendant “did not ask . . . to have your lawyer removed from
the case,” the judge “deem[ed]” defendant was asking him to do so and, “[b]ased
on what I see in this trial so far,” denied the motion.



b. Analysis

Defendant contends the
trial court failed to conduct a proper Marsden
hearing. She argues it held a
perfunctory hearing and failed to probe into the details of the purported
discrepancies between Downing’s report and his trial testimony. We find no error.

“When a defendant seeks
new counsel on the basis that his appointed counsel is providing inadequate
representation—i.e., makes what is commonly called a Marsden motion
[citation]—the trial court must permit the defendant to explain the basis of
his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the
record clearly shows that the appointed counsel is not providing adequate
representation or that defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to
result. Substitution
of counsel lies within the court’s discretion.
The court does not abuse its discretion in denying the motion unless the
defendant has shown that a failure to replace counsel would substantially
impair the defendant’s right to assistance of counsel. [Citation.]”
(People v. Smith (2003) 30
Cal.4th 581, 604.)

Contrary to defendant’s
claim, the trial court did not commit any procedural error in conducting the >Marsden hearing. Where “‘the critical factual inquiry
. . . relates to matters outside the trial record
. . . rather than from unwise choice of trial tactics and
strategy[,]’ . . . a judge who denies a motion for substitution
of attorney[] solely on the basis of his courtroom observations, despite a
defendant’s offer to relate specific instances of misconduct, abuses the
exercise of his discretion to determine the competency of the attorney.” (People
v. Marsden, supra, 2 Cal.3d at pp. 123-124.) However, “‘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 . . . .’ [Citation.]”
(People v. Alfaro (2007) 41
Cal.4th 1277, 1320.)

Here, the court allowed
defendant to explain her concerns about her attorney’s representation. Her sole complaint focused on defense
counsel’s cross-examination of Downing.
She claimed counsel had not brought out many of the discrepancies
between Downing’s testimony and the details contained in his arrest
report. Counsel acknowledged defendant
was correct, as a factual matter, in noting the numerous discrepancies between
Downing’s testimony and his report.
Thus, there was no need for the court to conduct a further inquiry on
the basis of defendant’s complaint about defense counsel’s actions. (People
v. Valdez (2004) 32 Cal.4th 73, 95-96 [“trial court conducted a name="SR;15900">sufficient inquiry during” Marsden
hearing where “[t]he record demonstrates that the court provided name="SR;15753">defendant
with ample opportunity to detail his concerns and state the grounds for his motion” and “[a]fter hearing defendant’s complaints,
. . . allowed counsel to respond”].)


As the court’s comments
reflect, defendant’s objection concerned defense counsel’s trial strategy. “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.’ [Citation.]”
(People v. Welch (1999) 20
Cal.4th 701, 728-729.)

The Attorney General
suggests defense counsel did have a
tactical purpose in the manner he questioned Downing. During closing argument, counsel used
Downing’s erroneous description of the backpack’s color, plus discrepancies between
his testimony and that of other witnesses, to discredit his testimony: “[Downing] wanted so badly for [defendant] to
be one of the people dressed all in black, that he said she had a black
backpack. Take a look at the picture [of
the backpack]. It was important to him,
apparently, that she be arrested and prosecuted, I guess. But it wasn’t so.” Focusing on these discrepancies when
cross-examining Downing would have afforded the officer or the prosecutor the
opportunity to explain the differences or clear them up.

Nor did the court err in
complimenting defense counsel. In a case
where the “defendant’s dissatisfaction with . . . counsel was
based . . . on matters that occurred within the
courtroom, . . . [a] trial court [that] ha[s] personally observed
defense counsel’s conduct, . . . could properly comment on the
quality of [counsel’s] performance.” (>People v. Hines (1997) 15
Cal.4th 997, 1026.) Defendant’s
attempt to rely on similar comments during her sentencing hearing is also
unavailing. Events occurring “after the
trial court ha[s] denied defendant’s Marsden motion
. . . cannot be used to undermine the trial court’s exercise of
discretion in denying the motion.” (>People v. Abilez (2007) 41
Cal.4th 472, 489.)

“The trial court
afforded defendant ample opportunity to set forth her complaints regarding
counsel’s representation, and after hearing defendant’s complaints the trial
court allowed counsel to respond. The
trial court was not required to do more.”
(People v. Alfaro, supra, 41
Cal.4th at p. 1320.) We find the
trial court did not abuse its discretion in denying defendant’s >Marsden motion.



>2.
Impeachment of Castillo

a. Background

After the prosecution
rested its case-in-chief, defendant’s attorney

advised
the court he intended to call Castillo as a witness, but he had been notified
the prosecutor intended “to impeach this witness . . . with
conduct which apparently forms the basis of a” pending criminal charge. The prosecutor confirmed defense counsel’s
statements. Defense counsel sought a
hearing on “whether or not that’s going to be permissible
. . . .” Castillo’s
attorney was also present and declared if the court found that evidence of his
client’s conduct underlying the pending charge was “admissible and will allow
the People to impeach” Castillo with it, “my client would be invoking his Fifth
Amendment privilege.”

The trial court ruled
the prosecution could use this evidence to impeach Castillo. It noted a witness’s “character is always
central to the issue whether his testimony is true or not
. . . .” Applying
Evidence Code section 352, the court found there would be “no confusion”
or undue consumption of time. As for
prejudice, the court ruled, “My concern is whether there is undue prejudice to
the defendant. I don’t see that in this
case. This is about the witness[’s]
character, not about the defendant. And
even if there[] is some prejudice against the defendant, it has to be substantial
. . . or undue prejudice, which I do not find to be present in
this case.”

As a consequence, the
defense did not call Castillo as a witness.



b. Analysis

Defendant contends the
trial court erred in ruling that if Castillo testified, the prosecution could
impeach him with evidence of the conduct underlying his pending drug
trafficking charge. She argues the
ruling was prejudicial because Castillo “was

her
corroborating witness, who already had pleaded guilty to the same crime and who
could have explained the actual circumstances of the vandalism,” and “[i]n his
absence, [she] . . . became the only witness in her
defense.”

The first issue is the
Attorney General’s claim defendant waived this issue by failing to timely
object to the court’s ruling at trial.
We conclude the issue has been preserved for appeal.

Evidence Code
section 353, subdivision (a) requires “[t]here appear[]

of
record an objection to or a motion to exclude or to strike
. . . evidence that was

timely
made and so stated as to make clear the specific ground of the objection or
motion” before a judgment can be reversed “by reason of the erroneous admission
of evidence . . . .”
Cases have recognized “[t]he
statute does not require
any particular form of objection” (People
v. Partida (2005) 37 Cal.4th 428, 434-435), but merely requires an
objection “‘alert the trial court to the nature of the anticipated evidence and
the basis on which exclusion is sought, and to afford the [proponent] an
opportunity to establish its admissibility.’
[Citation.] What is important is
that the objection fairly inform the trial court, as well as the party offering
the evidence, of the specific reason or reasons the objecting party believes
the evidence should be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling.” (Id.
at p. 435.)

Defendant’s request for
a ruling on the admissibility of Castillo’s drug trafficking conduct as
impeachment was in the nature of a motion in limine. Under these circumstances an evidentiary
objection can be preserved for appeal where “(1) a specific legal ground for
exclusion was advanced through an in limine motion and subsequently raised on
appeal; (2) the in limine motion was directed to a particular, identifiable
body of evidence; and (3) the in limine motion was made at a time, either
before or during trial, when the trial judge could determine the evidentiary
question in its appropriate context. [Citations.]”
(People v. Whisenhunt (2008)
44 Cal.4th 174, 210.)

That is the case
here. After the People rested, defense counsel
informed the court of his intent to call Castillo as a witness and of the
prosecutor’s declared intent to impeach Castillo with evidence of his conduct
underlying the pending drug trafficking charge, a circumstance verified by the
prosecutor. Castillo’s own attorney
acknowledged the court’s ruling on the admissibility of this evidence was
crucial to whether Castillo would assert his privilege against href="http://www.mcmillanlaw.com/">self-incrimination. Furthermore, the trial judge’s comments
reflect not only that he understood the issue, but he gave a full explanation
of the reasons he considered the impeachment evidence admissible. Nothing further was required to preserve the
issue for appeal.

On the merits, we
conclude the trial court properly exercised its discretion in finding the
proffered impeachment evidence admissible.
“A witness may be impeached with any prior conduct involving moral
turpitude whether or not it resulted in a felony conviction, subject to the
trial court’s exercise of discretion under Evidence Code section 352. [Citations.]”
(People v. Clark (2011) 52
Cal.4th 856, 931, fn. omitted.) In
deciding whether to admit such evidence for impeachment, “the court should
consider, among other factors, whether it reflects on the witness’s honesty or
veracity, whether it is near or remote in time, whether it is for the same or
similar conduct as the charged offense, and what effect its admission would
have on the defendant’s decision to testify.
[Citations.] Additional considerations
apply when the proffered impeachment evidence is misconduct other than a prior
conviction. This is because such
misconduct generally is less probative of immoral character or dishonesty and
may involve problems involving proof, unfair surprise, and the evaluation of
moral turpitude. [Citation.] As we have advised, ‘courts may and should
consider with particular care whether the admission of such evidence might involve
undue time, confusion, or prejudice which outweighs its probative value.’ [Citation.]” (Id.
at pp. 931-932.)

“The first factor goes
to admissibility of the prior [criminal

conduct]
. . . .
[Citations.]” (>People v. Green (1995) 34
Cal.App.4th 165, 182.) It is not
disputed Castillo’s conduct underlying the pending drug charge constituted
moral turpitude. Cases have held
“[c]rimes related to [drug] trafficking involve moral turpitude. [Citations.]”
(People v. Gabriel (2012) 206
Cal.App.4th 450, 459.) The crime of
possessing drugs for sale involves moral turpitude because it reflects “the
intent to corrupt others” (People v.
Castro (1985) 38 Cal.3d 301, 317, fn. omitted) and thus “a readiness
to do evil” (People v. Gabriel, supra,
206 Cal.App.4th at p. 459 [holding “[t]he trial court did not err in
permitting [the] defendant’s impeachment with his prior conviction of”
cultivating marijuana]).

But defendant
nonetheless claims the trial court erred in finding Evidence Code
section 352 did not preclude use of this evidence for impeachment. We disagree.
The record shows the trial court expressly considered and rejected each
of the possible grounds for excluding the evidence under the statute. It found admission of Castillo’s drug
trafficking conduct would not consume too much time or cause confusion for the
jury, nor was there any indication of proof problems concerning it.

On the question of undue
prejudice, the trial court noted evidence of the conduct underlying the drug
charge was relevant to assist the jury in determining whether to believe
Castillo’s purported testimony in this case.
Since the drug charge was then pending, clearly his actions were not too
remote in time. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925 [“convictions
. . . characterized as remote . . . generally
lessen their probative value”].) Nor was
evidence Castillo’s drug trafficking conduct excludable because it was too
similar to defendant’s felony vandalism charge.
(Id. at p. 926.)

Defendant asserts
Castillo had been charged with vandalizing the club and pleaded guilty to that
charge. She argues, since felony
vandalism also constitutes a crime of moral turpitude (People v. Campbell (1994) 23 Cal.App.4th 1488, 1493),
“evidence of Castillo’s participation in a crime of moral turpitude
. . . inevitably would have come before the jury anyway,”
thereby making use of his pending drug charge for impeachment “cumulative and
unnecessary . . . .”
Defendant fails to provide any record establishing Castillo had entered
a guilty plea to vandalizing the club.
But even if so, and further assuming the trial court did not find it too
similar to the present charge to admit it for impeachment, that would not
preclude use of his conduct underlying the pending drug charge to impeach
him. “[A]s this court has recognized, name=clsccl35>a series of crimes may be more probative of credibility than
a single crime. [Citations.] ‘“[W]hether or not more than one prior felony
should be admitted is simply one of the factors which must be weighed against
the danger of prejudice. [Citation.]”’
[Citation.]” (People v. Clark, supra, 52 Cal.4th at pp. 932-933; see also >People v. Mendoza, supra, 78
Cal.App.4th at p. 927 [“impeachment . . . with only one or
two priors would have given [witness] a ‘false aura of veracity’ because it
would suggest that [he] has led a generally legally blameless life”].)

The only significant
support for defendant’s abuse of discretion claim is that the trial court’s
ruling did lead Castillo to assert his Fifth Amendment privilege against
self-incrimination. Defendant argues
“Castillo’s testimony was crucial to [her] case” and thus the ruling deprived
her of the right to present a defense.
Not so. As the prosecutor noted
in his rebuttal argument defendant could have called at least four other
persons to corroborate her version of the events; her son, his friend Jimmy,
Sean, and Dylan. And contrary to
defendant’s suggestion, the prosecutor did not take advantage of the court’s
ruling during rebuttal. As the Attorney
General notes, when arguing defendant failed to call logical witnesses to
support her case, he specifically referred to those individuals.

“Because the court’s
discretion to admit or exclude impeachment evidence ‘is as broad as necessary
to deal with the great variety of factual situations in which the issue arises’
[citation], a reviewing court ordinarily will uphold the trial court’s exercise
of discretion [citations].” (>People v. Clark, supra, 52
Cal.4th at p. 932.) The trial court
properly exercised its discretion in finding Castillo could be impeached with
evidence of conduct underlying his pending drug
trafficking charge.



DISPOSITION



The judgment is
affirmed.









RYLAARSDAM,
ACTING P. J.



WE CONCUR:







BEDSWORTH, J.







ARONSON, J.