>P. v.
Marquez

 

 

 

 

 

 

 

 

Filed
6/25/13  P. v. Marquez CA5

 

 

 

 

 

 

 

 

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   VICTOR ALEXANDER MARQUEZ,   Defendant and Appellant.

F063837   (Super. Ct. No. VCF222534)     >OPINION

 

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County.  Gerald F. Sevier, Judge.

            Jerome P.
Wallingford, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M.
Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-



A jury convicted Victor Alexander
Marquez of the stabbing murder of
Maria Juarez (Pen. Code, § 187, subd. (a)) and found true the special
circumstance that the murder was committed during the commission of a href="http://www.fearnotlaw.com/">robbery (id., § 190.2, subd. (a)(17)(A)).  The trial court sentenced Marquez to a term
of life without the possibility of parole. 
He was 17 at the time of the crime. 
There is no doubt Marquez committed the murder.  He confessed to the crime, his DNA was found
at the scene as the result of a wound he suffered during the murder, and
Juarez’s and Marquez’s DNA was found on the murder weapon that was hidden in
his bedroom.

Marquez argues the trial court
erred when it refused to suppress his confession and the href="http://www.mcmillanlaw.com/">incriminating evidence found when police
officers searched his residence pursuant to a probation search condition.  He also claims the trial court erred when it
denied his numerous motions for the appointment of new counsel pursuant to >People v. Marsden (1970) 2 Cal.3d 118 (>Marsden).  We disagree and affirm the conviction.

Marquez also contends the sentence
of life without the possibility of parole constitutes cruel and unusual
punishment, in violation of the Eighth Amendment to the United States
Constitution.  While this case was pending,
the United States Supreme Court issued its decision in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (>Miller), which held that a sentencing
scheme that mandates a sentence of life without the possibility of parole for a
juvenile offender for a homicide offense constitutes cruel and unusual
punishment. 

California’s sentencing scheme does
not suffer from this deficit because the trial court had the discretion to
sentence Marquez to a term of 25 years to life but chose not to exercise that
discretion.  Miller, however, strongly implies that only in unusual
circumstances will a sentence of life without the possibility of parole for a
juvenile convicted of a homicide offense comply with the Eighth Amendment.  Miller also
provides relevant criteria for the sentencing court to consider when
considering a life sentence.  Since the
trial court did not have Miller to
guide its sentencing decision, it did not consider all of the factors the
Supreme Court considers relevant to the Eighth Amendment analysis.  To ensure Marquez’s sentence does not violate
the Eighth Amendment, we will reverse the judgment and remand for resentencing
to permit the trial court to consider the effect of Miller on its sentencing decision.href="#_ftn1" name="_ftnref1" title="">^[1] 

FACTUAL AND PROCEDURAL SUMMARY

The information charged Marquez
with one count of murder and alleged the special circumstance that the murder
was committed during the course of a robbery. 
In addition, the information alleged that Marquez used a deadly and
dangerous weapon within the meaning of Penal Code section 12022, subdivision
(b)(1).  

At approximately 6:33 a.m., Visalia
Police Officer William Brokhoff was dispatched to an alley where he discovered
the dead body of a Hispanic female, later identified as Ms. Juarez, lying in a
pool of blood.  In addition to the pool
of blood near the victim, numerous blood drops were located on the ground
leading away from the victim’s body, and a bloody palm print and blood spatter
were found on a wall. 

Nineteen slash and/or stab wounds
were found on the victim’s body.  Three
of the wounds in the upper chest/neck area were deep enough to puncture the
left carotid artery, the right carotid artery, and the right subclavian
artery.  The combination of these three
wounds caused massive bleeding and the victim’s death.

Investigating officers obtained
information that led them to Marquez, primarily Marquez’s proximity to the
crime scene and visible injuries to his hand that could have been consistent
with knife wounds.  Blood-stained
clothing was found in Marquez’s bedroom,
and a folding knife wrapped in a T-shirt was located under the mattress.    Based on information obtained from Marquez,
three items of blood-stained clothing (two shirts and a pair of shorts) were
found in the dumpster of an apartment complex northeast of the crime
scene. 

Marquez consented to an interview
with the investigating officers.  While
he initially denied any involvement in the murder, he eventually confessed to
stabbing Ms. Juarez while attempting to rob her. 

DNA evidence indicated that Marquez
could not be eliminated as the source of blood in the blood drops leaving the
crime scene.  Population data suggested
that Marquez was the donor of the blood drops.href="#_ftn2" name="_ftnref2" title="">^[2]  When the knife recovered from Marquez’s
bedroom was tested, two contributors were identified, and neither Ms. Juarez
nor Marquez could be eliminated as the source of the samples.  Similarly, the sample from the knife
indicated that the female contributor likely was Ms. Juarez.href="#_ftn3" name="_ftnref3" title="">^[3] 

Marquez presented evidence that he
was emotionally and physically abused as a child, suffered blackouts throughout
his childhood, and, as he stated during his confession, he suffered a blackout
during the murder.

The prosecution argued Marquez was
guilty of felony murder because he committed the murder during a robbery.  Marquez claimed he suffered a blackout when
Ms. Juarez was killed and thus was legally unconscious and therefore not guilty
of murder.  He also argued the robbery
ended when he had the blackout, thus he was not guilty of felony murder.

The jury found Marquez guilty and
found the enhancements true.

Marquez argued at sentencing that
the trial court should exercise its discretion and sentence him to 25 years to
life instead of life without the possibility of parole.  The trial court acknowledged its discretion pursuant
to Penal Code section 190.5, subdivision (b), but chose the sentence of life
without the possibility of parole. 

DISCUSSION

>I.                  
Suppression
of the Confession

The trial court denied Marquez’s
motion to suppress his confession. 
Marquez asserts the trial court erred for two reasons.  First, he argues the confession was
inadmissible pursuant to In re Wayne H. (1979)
24 Cal.3d 595 (Wayne H.).  Second, he asserts the confession was coerced
and therefore inadmissible. 

>A.    
> Wayne
H.

Wayne
H. involved an admission made by a
minor during a Welfare and Institutions Code section 628href="#_ftn4" name="_ftnref4" title="">^[4] interview. 


For perspective, we begin with
section 625, which provides that a peace officer may take a minor into
temporary custody when the officer has reasonable cause for believing the minor
is a person described by section 601 or 602 (§ 625, subd. (a)) or if the
officer has reasonable cause to believe the minor has violated an order of the
juvenile court (id., subd. (b)).  A peace officer who takes a minor into
temporary custody pursuant to section 625 has four options:  (1) release the minor (§ 626, subd.
(a)), (2) deliver the minor to the public or private agency that provides
shelter and care for such minors (id., subd.
(b)), (3) release the minor after preparing and serving a notice to appear (>id., subd. (c)), or (4) “Take the
minor without unnecessary delay before the probation officer … and deliver the
custody of the minor to the probation officer” (id., subd. (d)).

When a peace officer takes a minor
into temporary custody and then delivers the minor to the probation officer,
“the probation officer shall immediately investigate the circumstances of the
minor and the facts surrounding his or her being taken into
custody .…”  (§ 628, subd.
(a).)  The purpose of this investigation
is to determine whether the minor should be detained, released to his or her
parents, or put on some other type of supervised release.  (Ibid.) 

The investigatory requirement of
section 628 was the focus of Wayne H.  Wayne was detained because the police officer
had reasonable cause to believe Wayne had committed an armed robbery and thus
came within the provisions of section 602. 
When interviewed by the investigating detective, Wayne denied any
involvement in the robbery.  Wayne was
then delivered to the probation officer. 


The probation officer advised Wayne
of his constitutional rights pursuant to Miranda
v. Arizona (1966) 384 U.S. 436.  He
then explained to Wayne that the results of the interview would bear on whether
or not Wayne would be detained and whether juvenile fitness proceedings would
be recommended.  Wayne again denied any
involvement in the robbery.  When the
probation officer informed Wayne that he would be recommending detention and a
fitness hearing, Wayne admitted he committed the robbery.  (Wayne
H., supra, 24 Cal.3d at p. 598.) 

At the subsequent href="http://www.fearnotlaw.com/">adjudication hearing on the section 602
petition, the prosecutor introduced Wayne’s admission.  The Supreme Court concluded that Wayne’s
admission should have been excluded because “the
subsequent use of statements made by a juvenile to a probation officer in a
section 628 interview would frustrate important purposes of that statute, and
of the Juvenile Court Law generally.  We
therefore hold that such statements are not admissible as substantive evidence,
or for impeachment, in any subsequent proceeding to determine criminal guilt,
whether juvenile or adult.  Such
statements may, of course, be admitted and considered in hearings on the issues
of detention and fitness for juvenile treatment.”  (Wayne
H., supra, 24 Cal.3d at p. 602.)

The Supreme Court explained its
reasoning:

“The interview required by a
juvenile probation officer under section 628 is conducted in a nonaccusatorial
setting.  Contrary to the People’s
contention, the consultation is not analogous to police interrogation of an
adult suspect.  In fact, the section 628
interview has no counterpart in adult criminal proceedings in which the
defendant confers with his probation officer only after conviction.  [Citation.] 
The primary purpose
of the section 628 interview, as the statutes make clear, is not to elicit
evidence of guilt—the function of police questioning—but to assist the
probation officer in deciding at the outset of the case whether the minor need
be further detained pending a court hearing. 
[Citations.]  This approach
thereby serves a paramount concern of the Juvenile Court Law—that a minor be
treated in the least restrictive means feasible under the circumstances
[citations].

“While the purposes of such an
interview are relatively restricted, however, the latitude given the probation
officer in reaching a detention decision, and the effect of that decision on
the minor, are substantial.  The
probation officer is required to investigate ‘the circumstances of the minor and
the facts surrounding his being taken into custody’ in order to determine
whether such detention is appropriate. 
[Citation.]  Among the factors
justifying detention are the risk of the defendant’s flight and the possibility
that his freedom will present a danger to person or property.  [Citation.] 
The probation officer’s decision may cause the minor to be detained for
a period not exceeding 72 hours after arrest before he receives a court hearing
on the detention issue.  [Citation.]

“Under these circumstances, the
minor’s frank discussion of the offense may indicate that his involvement was
innocent or secondary, or, more to the point, that he is cooperative and
remorseful, and is therefore a good candidate for release pending further
proceedings.  Candor will assist the
probation officer in discharging his statutory duty to determine the least
restrictive feasible treatment of the minor. 
[Citation.]  A free interchange
between minor and officer should therefore be encouraged.”  (Wayne
H., supra, 24 Cal.3d at p. 601.)

The facts surrounding Marquez’s
confession provide the fodder for his argument. 
As stated, investigating officers identified Marquez as a suspect in Ms.
Juarez’s murder.  Marquez was walking on
the street when the officers asked to speak to him.  They quickly learned Marquez was on juvenile
probation and summoned his probation officer to the scene.  When the officers confirmed the terms of
Marquez’s probation included a search condition, they went from the scene of
the initial detention to Marquez’s house to conduct a search.  Marquez was placed in the probation officer’s
vehicle and transported to his (Marquez’s) house by the probation officer.  Marquez remained in the vehicle during the
search.  When the search was completed,
the investigating officers directed the probation officer to transport Marquez
to the police station where he was interviewed. 
The probation officer was present and participated in the interview.

Marquez asserts custody was turned
over to the probation officer when the probation officer arrived at the scene
of the initial detention.  He further
asserts that it was the probation officer who told him he was being detained
because he was in violation of his probation. 
He concludes that these facts suggest the detention was handled pursuant
to sections 625 through 628, and the only logical interpretation of the facts
is that the confession was part of the section 628 interview.  We disagree.

 The facts establish Marquez was a suspect in
the murder of Ms. Juarez, and the purpose of the interview was to obtain
information that would either incriminate or exonerate him in that murder.  The assertion that some hypothetical
individual in the same situation would have thought the interrogation was being
conducted to ascertain whether he or she should be released or detained is
irrelevant.  There is no indication that
Marquez thought the interview was being conducted for that purpose, nor was
that the investigating officer’s purpose in conducting the interview.  Indeed, as Marquez eventually acknowledged,
when the investigating officer approached him on the street, Marquez knew he
was a detective and “had a feeling” he was being investigated for Ms. Juarez’s
murder. 

Nor did the investigating officer
ever consider the interview to be pursuant to section 628.  Even the probation officer, who was familiar
with section 628 interviews, testified that this was not a section 628
interview, nor was it ever intended to be a section 628 interview. 

Also, there was no indication in
the interview that it was being conducted for the purpose of determining
whether Marquez should be detained or released to his parents.  We have listened to the entire recorded
interview and have reviewed the transcript. 
It is clear the purpose of the interview was the investigation of Ms.
Juarez’s murder.  On page nine of the
54-page transcript, the investigating officer informed Marquez that the reason
he was being detained was “beyond important. 
Do you understand, for you? 
Because we are dealing with something that’s very serious.”  Even if there were a possibility that Marquez
thought he was being questioned because he was wearing gang attire, in
violation of the terms of his probation, this statement unquestionably let Marquez
know he was being investigated for a serious crime. 

Marquez’s detention for a probation
violation also is irrelevant.  Because
there was reasonable cause to believe he was in violation of his probation, the
investigating officers legally could detain Marquez, even if they did not have
probable cause to arrest him for Ms. Juarez’s murder.  When Marquez asked why he was being detained,
he honestly was told it was because of the probation violation.  Simply because he was detained for a
violation of probation, however, does not convert the interrogation into a
section 628 interview.

  
It is abundantly clear that the only purpose of the interview was to
investigate Ms. Juarez’s murder.  The
investigating officer, the probation officer, and even Marquez knew the
interview was related to Ms. Juarez’s murder. 
Whether we review the issue using a subjective or objective standard,
there is no question that this was not a section 628 interview.  Accordingly, the trial court properly denied
Marquez’s motion to suppress the interview on this ground.    

B.  Coercion

Marquez also contends the interview
was coerced and therefore should have been suppressed.  He bases this argument on the presence of his
probation officer during the interrogation. 


We begin with the well-settled
rules relating to coercive interrogations.

name="sp_999_18">“The admission at trial of a
defendant’s statements made involuntarily to government officials violates the
defendant’s federal due process rights under the Fifth and Fourteenth
Amendments.  [Citation.]  name="SDU_499">name="citeas((Cite_as:_43_Cal.4th_76,_*114,_18">Similarly, a defendant must be
advised of his or her Miranda rights,
and must make a valid waiver of these rights, before questioning begins or any
statements resulting from interrogation can be admitted.  [Citations.] 


name="______#HN;F10">name=B112015665906>“When a defendant challenges the admission of his or her
statements on the ground they were involuntarily made, the prosecution must
prove by a preponderance of the evidence the statements were, in fact,
voluntary.  [Citation.]  A statement is involuntary if it is ‘not
“‘the product of a rational intellect and a free will.’”’  [Citation.] 
The court in making a voluntariness determination ‘examines “whether a
defendant’s will was overborne” by the circumstances surrounding the giving of
a confession.’  [Citation.]  Coercive police tactics by themselves do not
render a defendant’s statements involuntary if the defendant’s free will was
not in fact overborne by the coercion and his decision to speak instead was
based upon some other consideration. 
[Citations.]  The determination
whether the authorities improperly coerced a defendant’s statements involves an
evaluation of the totality of the circumstances, including the nature of the
interrogation and the circumstances relating to the particular defendant.  [Citation.] 


name=B122015665906>            “The
same inquiry applies when a court evaluates the voluntariness of a >Miranda waiver.  [Citation.] 
Such a waiver must be knowingly and intelligently made, meaning that the
defendant must have been capable of freely and rationally choosing to waive his
or her rights and speak with the officers. 
[Citation.]  [¶] … [¶]  

“On appeal, we review independently the trial
court’s legal determinations of whether a defendant’s statements were voluntary
[citation], whether his Miranda
waivers were knowingly, intelligently, and voluntarily made [citation], and
whether his later actions constituted an invocation of his right to silence name="sp_4645_263">name="citeas((Cite_as:_43_Cal.4th_76,_*115,_18">[citation].  We evaluate the trial court’s factual
findings regarding the circumstances surrounding the defendant’s statements and
waivers, and ‘“accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if supported by substantial
evidence.”’  [Citations.]”  (People
v. Rundle (2008) 43 Cal.4th 76, 114-115, overruled on other grounds in >People v. Doolin (2009) 45 Cal.4th 390,
421.) 

This standard of review highlights the first reason
we must reject Marquez’s argument.  We
review the trial court’s factual findings to determine if they are supported by
substantial evidence.  The trial court
did not make any factual findings on this issue because Marquez failed to
present this argument to the trial court. 
Nor was the prosecution given the opportunity to demonstrate the
confession was voluntary.  Accordingly,
the argument is forfeited.  (>In re Sheena K. (2007) 40 Cal.4th 875,
880-881; People v. Michaels (2002) 28
Cal.4th 486, 512 (Michaels).)

Even if we were to consider the
argument on the merits, we would reject it. 
“A statement is involuntary if it is not the product of ‘“a rational
intellect and free will.”’ 
[Citation.]  The test for
determining whether a confession is voluntary is whether the defendant’s ‘will
was overborne at the time he confessed.’ 
[Citation.]  ‘“The question posed
by the due process clause in cases of claimed psychological coercion is whether
the influences brought to bear upon the accused were ‘such as to overbear
[defendant’s] will to resist and bring about confessions not freely
self-determined.’  [Citation.]”  [Citation.] 
In determining whether or not an accused’s will was overborne, “an
examination must be made of ‘all the surrounding circumstances—both the
characteristics of the accused and the details of the interrogation.’  [Citation.]” 
[Citation.]’  [Citation.]  [¶] name="SDU_35">name="______#HN;F71">name=B722003307854>A finding of coercive police activity is a prerequisite
to a finding that a confession was involuntary under the federal and state
Constitutions.  [Citations.]  A confession may be found involuntary if
extracted by threats or violence, obtained by direct or implied promises, or
secured by the exertion of improper influence. 
[Citation.]  Although coercive
police activity is a necessary predicate to establish an involuntary
confession, it ‘does not itself compel a finding that a resulting confession is
involuntary.’  name="SDU_405">[Citation.]  The statement and the inducement must be
causally linked.  [Citation.]”  (People
v. Maury (2003) 30 Cal.4th 342, 404-405.)

Marquez’s argument, in essence, is
that because his probation officer was present, and he had a lengthy history of
interacting with Marquez in the course of Marquez’s probation, and Marquez was
required to communicate openly with his probation officer, the resulting
confession was involuntary.  Also,
Marquez’s documented history of low intelligence, poor educational background,
and “impaired communication skills” made Marquez susceptible to manipulation,
further demonstrating the confession was involuntary.href="#_ftn5" name="_ftnref5" title="">^[5] 

Marquez fails to provide any
authority that supports his argument. 
The closest he comes to citing relevant authority are the cases that
direct us to look at all the circumstances surrounding the confession when
evaluating whether the confession was voluntary.  (See, e.g., Rachlin v. United States (8th Cir. 1983) 723 F.2d 1373.)  But Rachlin claimed his confession was
involuntary because he was promised leniency in exchange for confessing.  The appellate court rejected the claim
because the record demonstrated there were no implied promises, coercive
tactics, or threats.  (>Id. at p. 1378.)  Statements made in the hope of leniency are
not the product of coercion and thus are voluntary.  (Ibid.)

Marquez cannot point to any threats
or implied promises of leniency.  At the
beginning of the interview, Marquez demonstrated his willingness to deny any
involvement in the murder.  While his
probation officer and the investigating detective repeatedly encouraged Marquez
to tell the truth, neither suggested nor implied that Marquez was required to
answer all questions posed to him simply because he was on probation.  At no time was Marquez told that he would
have to answer all questions or have his probation revoked.  Moreover, encouraging a suspect to be
truthful is not coercion. 

The circumstances surrounding the
interrogation establish that the presence of the probation officer was not a
coercive tactic.  Marquez primarily was
interrogated by the investigating detective. 
Marquez was told that he was being questioned about “something that’s
very serious.”  Undoubtedly, Marquez knew
that wearing gang attire was not “very serious.”  Finally, Marquez was informed of his
constitutional rights pursuant to Miranda.  These facts put Marquez on notice that he was
being interrogated about a serious crime, despite his probation officer being
present during the interrogation.

The recording of the confession
further confirms no coercive tactics were used during the interrogation.  As stated above, initially Marquez denied any
involvement in Ms. Juarez’s murder.  The
investigating officer, who clearly led the interrogation, then questioned
Marquez about his movements during the relevant times.  When the investigating officer repeatedly
informed Marquez that independent evidence established he was lying, Marquez
repeatedly changed his story, only to be informed that the independent evidence
also established the new story was untrue. 
Marquez, apparently realizing he could not avoid prosecution, then
became very emotional and confessed to the murder. 

It appears, as Marquez stated when
he talked to his mother after confessing, the confession was the result of
Marquez’s desire to clear his conscience. 
He repeatedly stated he was sorry for what had occurred, and he was
incredulous that he had murdered Ms. Juarez. 
Such statements reflect a guilty conscience and not a coercive
environment.  Accordingly, we reject
Marquez’s claim of coercion.

>II.        Suppression
of Evidence Obtained During the Search of Marquez’s Residence

When the investigating officer
initially encountered Marquez, he learned that Marquez was on probation and the
terms of probation included a search condition that allowed any peace officer
to search Marquez’s residence at any time without cause.  The investigating officers searched Marquez’s
residence pursuant to this condition before he was interrogated.  The knife used to murder Ms. Juarez was
discovered under Marquez’s mattress. 

Marquez concedes he was subject to
a probation search condition, but asserts the search violated his Fourth
Amendment rights because the investigating officers did not have a reasonable
suspicion Marquez was involved in criminal activity at the time of the search.

Marquez cites United States v. Knights (2001) 534 U.S. 112 (Knights) as authority for the proposition that a police officer
must have a reasonable suspicion of criminal activity before he may search a
probationer’s residence pursuant to a probation search condition. 

In candor, Marquez acknowledges
that Knights is not directly on
point.  The Supreme Court held in >Knights that under the totality of the
circumstances in that case, a search conducted pursuant to a probation search
condition did not violate the Fourth Amendment because the officers had a
reasonable suspicion that Knights was involved in criminal activity.  (Knights,
supra, 534 U.S. at p. 122.)  Since
the search was lawful under the totality of the circumstances using the general
approach to Fourth Amendment issues, the Supreme Court did not reach the issue
of whether the probation condition was a complete waiver of his Fourth
Amendment rights.  (Knights, at p. 118.)

Marquez also concedes that the
California Supreme Court has held that a probation search condition does not
violate the Constitution, even if the search is conducted without a reasonable
suspicion that the probationer was engaged in criminal activity, so long as the
search is not arbitrary, capricious, or harassing.  (People
v. Reyes (1998) 19 Cal.4th 743, 752.) 
There is no claim here that the search was arbitrary, capricious, or
harassing.  Since we are bound by Supreme
Court precedent, we reject Marquez’s argument. 
(Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)




III.       Marsden
Motions

Marquez made four motions pursuant
to Marsden, all of which were
denied.  He argues the trial court erred
when it denied his motions.

The Applicable Law

In Marsden, the Supreme Court held that a “judge who denies a motion
for substitution of attorneys 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.  A judicial decision made
without giving a party an opportunity to present argument or evidence in
support of his contention ‘is lacking in all the attributes of a judicial
determination.’  [Citation.]”  (Marsden,
supra, 2 Cal.3d at p. 124.) 

Decisions since >Marsden now guide trial courts in the
exercise of discretion when a defendant seeks to replace his appointed
counsel.  “Once a defendant is afforded an opportunity to state his or
her reasons for seeking to discharge an appointed attorney, the decision
whether or not to grant a motion for substitution of counsel lies within the
discretion of the trial judge.  The court
does not abuse its discretion in denying a Marsden
motion ‘“unless the defendant has shown that a failure to replace counsel
would substantially impair the defendant’sname="SDU_286"> right
to assistance of counsel.”’ 
[Citations.]  Substantial
impairment of the right to counsel can occur when the appointed counsel is
providing inadequate representation or when ‘the defendant and the attorney
have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result [citation].’ 
[Citations.]”  (>People v. Clark (2011) 52 Cal.4th 856,
912 (Clark).)

The Marsden> Hearings

We now turn to Marquez’s four >Marsden motions.

Marquez’s first motion was made on
November 30, 2009.  Marquez informed the
trial court that he did not feel appointed counsel was motivated to defend him,
and that he (Marquez) did not understand what was happening in the case.  Marquez admitted he knew he was charged with
murder, was present at the preliminary hearing, and appointed counsel had
discussed the evidence against him. 
Appointed counsel then explained the numerous visits he had had with
Marquez, the topics discussed, as well as the other things that had been done
in preparing Marquez’s defense.  The
trial court found no basis for relieving counsel, concluding that appointed
counsel was making diligent efforts to defend Marquez. 

The second motion was made on June
8, 2010.  Marquez again asserted
appointed counsel had not kept him informed about the progress of the case and
claimed he did not understand much of the court proceedings.  He claimed appointed counsel had not been
able to explain the proceedings to him. 
He also claimed he had become upset with appointed counsel “a few
times.”  Marquez stated he did not trust
appointed counsel and could not work with him.

Appointed counsel admitted he had
attempted to explain the procedures but that Marquez did not appear to
understand.  This Marsden hearing occurred approximately one month after appointed
counsel declared a doubt about Marquez’s competency to understand the
proceedings because of a developmental disability, at which time the trial
court suspended criminal proceedings and instituted civil proceedings to
determine Marquez’s competency.  The
issue of competency was set for a jury trial shortly before this >Marsden motion was heard.  The trial court found no grounds to replace
appointed counsel.

The third motion was heard on
October 27, 2010, while competency proceedings were still pending.  Marquez’s first complaint was that appointed
counsel had failed to provide him with some unspecified documents related to
the case in what Marquez felt was a timely fashion.  His second complaint was that appointed
counsel informed him there were no viable defenses and there was nothing that
could be done to defend him.  Appointed
counsel suggested Marquez plead guilty and accept a sentence of life in
prison.  Marquez claimed he was unwilling
to work with appointed counsel and did not trust him. 

Appointed counsel stated he had
discussed the possibility Marquez might decide to plead guilty to the murder
without the special circumstance but denied telling Marquez he must plead
guilty.  He also denied ever telling
Marquez the case was an automatic loss or that Marquez was going to be
convicted.  He also asserted Marquez had
been provided with all relevant documents, but no photographs had been provided
yet because of a technical problem that prevented printing the
photographs. 

Marquez responded by stating he
felt appointed counsel was not prepared adequately.  The trial court found no merit to the motion,
explaining its reasoning to Marquez.

The final motion was made on August
10, 2011, approximately two months after a jury found Marquez competent to
stand trial.  Marquez began by
complaining that appointed counsel had failed to respond to his (Marquez’s)
requests for visits in a timely manner. 
When visits occurred, often they became heated.  Appointed counsel also left during a meeting
before Marquez was finished, a tactic Marquez admitted he also had
utilized.  On one occasion appointed
counsel struck a table with his hand in frustration.  Appointed counsel also took two to three
months to provide requested documents, failed to provide police reports
prepared by detectives who had relatively minor roles in the case, and refused
to file a motion to recuse the judge appointed for trial on the basis that the
judge was prejudiced against Marquez. 
Marquez asserted he was not going to get adequate legal representation
from appointed counsel, he was not going to get a fair trial, he was not going
to meet with appointed counsel in the future, and he would not come to the
courtroom in the future. 

Appointed counsel explained that a
Code of Civil Procedure section 170.6 motion had been filed prior to the matter
being assigned to the trial judge, and appointed counsel did not think there were grounds to make a motion to
remove the trial judge for cause.  He
also admitted that on occasion he did not respond to requests for a meeting for
two to three weeks, but denied that it took him two to three months to visit
with Marquez.  He also admitted some
discussions had been acrimonious and there had been difficulties between
Marquez and himself, but those difficulties originated with Marquez.  Oftentimes Marquez would blame appointed
counsel for his present circumstance. 
Appointed counsel also denied withholding any documents from Marquez,
but admitted that he had slammed his hand on the table in frustration on one
occasion.

 
The trial court began by explaining to Marquez that it was not
prejudiced against him and had no personal interest in the outcome of the
case.  The trial court also explained that
Marquez had a responsibility to cooperate with his appointed counsel, and
appointed counsel had an obligation to represent Marquez zealously.  The trial court informed Marquez that
appointed counsel had been making novel and interesting arguments demonstrating
he had given the case great thought and preparation.  Finally, the trial court concluded that
nothing Marquez stated would justify replacing appointed counsel at this time.

Analysis

Marquez does not suggest he
received inadequate representation, but instead argues his right to the
assistance of counsel was impaired substantially because he and appointed
counsel were embroiled in an irreconcilable conflict.  According to Marquez, the “increasingly
acrimonious and emotional nature of [his] meetings with his attorney prevented
[him] from trusting and working with [appointed counsel],” thus destroying the
attorney-client relationship.   We
disagree.

The record demonstrates Marquez was
confrontational not only with appointed counsel, but also with the trial
court.  The record also suggests Marquez
disagreed with appointed counsel’s tactical choices, specifically the choice to
litigate his competence to stand trial. 
Finally, the record suggests Marquez refused to accept responsibility
for the dire circumstances in which he found himself.  The combination of these factors caused
Marquez to act out in the only way he could -- by attacking appointed counsel
and complaining about trivial matters (e.g., not getting documents as quickly
as he would like and overreacting to discussions regarding a plea bargain).

Marquez was not entitled to new
appointed counsel simply because he disagreed with trial tactics, refused to
cooperate with counsel, did not trust counsel, or refused to communicate with
counsel in a respectful manner.  (>Clark, supra, 52 Cal.4th at p.  918; Michaels,
supra, 28 Cal.4th at p. 523; People
v. Welch (1999) 20 Cal.4th 701, 728-729.) 
As explained in People v. Jones (2003)
29 Cal.4th 1229, 1246, “If
a defendant’s claimed lack of trust in, or inability to get along with, an
appointed attorney were sufficient to compel appointment of substitute counsel,
defendants effectively would have a veto power over any appointment, and by a
process of elimination could obtain appointment of their preferred attorneys,
which is certainly not the law. 
[Citations.]”

In sum, we agree with the trial
court that there was not an irreconcilable breakdown in the attorney-client
relationship.  Accordingly, the trial
court did not abuse its discretion when it denied Marquez’s motions for a new
attorney.

IV.       Cruel and Unusual Punishment

The United States Supreme Court has
held that a sentence of life in prison without the possibility of parole for a
nonhomicide offense violates the Eighth Amendment’s prohibition against cruel
and unusual punishment if the offender was under 18 when the offense was
committed.  (Graham v. Florida (2010) 560 U.S. 48.) 

In Miller, supra, 567 U.S. ___ [132 S.Ct. 2455], the Supreme Court
further held that a mandatory
sentence of life in prison without the possibility of parole constituted cruel
and unusual punishment for homicide offenses if the offender was under 18 at
the time the homicide was committed. 
Both Miller and >Graham concluded that because juveniles
had a diminished culpability and greater prospects for reform, they were
different from adults and less deserving of the most sever punishments.  (Miller,
at p. ___ [132 S.Ct. at p. 2464].) 

These concepts stem from scientific
evidence that children (1) lack maturity and have an underdeveloped sense of
responsibility, which leads to recklessness, impulsivity, and heedless risk
taking, (2) are more susceptible to negative influences and outside pressure
from family and peers, (3) have limited control over their own environment and
lack the ability to extricate themselves from horrific, crime-producing
settings, and (4) cannot easily be identified as irretrievably depraved
because their character is not as well formed as an adult’s and their traits
and/or character are more malleable than those of adults.  (Miller,
supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2464].)  These characteristics render the penological
goals of retribution and deterrence unjustified.  (Id.
at p. ___ [132 S.Ct. at p. 2465].)  Since
a child is less blameworthy, the strength of the retribution rationale is
reduced.  (Ibid.)  And because a child
is less likely to consider potential punishment when acting, the strength of
the deterrence justification is reduced. 
(Ibid.)

The Supreme Court summarized its
conclusions as follows:  “So Graham
[v. Florida, supra, 560 U.S. 48]
and Roper [v. Simmons (2005) 543 U.S. 551] and our individualized sentencing
cases alike teach that in imposing a State’s harshest penalties, a sentencer
misses too much if he treats every child as an adult.  To recap: 
Mandatory life without parole for a juvenile precludes consideration of
his chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences.  It prevents taking into account the family and
home environment that surrounds him—and from which he cannot usually extricate
himself—no matter how brutal or dysfunctional. 
It neglects the circumstances of the homicide offense, including the
extent of his participation in the conduct and the way familial and peer
pressures may have affected him.  Indeed,
it ignores that he might have been charged and convicted of a lesser offense if
not for incompetencies associated with youth—for example, his inability to deal
with police officers or prosecutors (including on a plea agreement) or his incapacity
to assist his own attorneys. 
[Citations.]  And finally, this mandatory punishment disregards the
possibility of rehabilitation even when the circumstances most suggest it.”  (Miller,
supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468].) 

The Supreme Court concluded with
its holding and future directions.  “We
therefore hold that the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.  [Citation.] 
By making youth (and all that accompanies it) irrelevant to imposition
of that harshest prison sentence, such a scheme poses too great a risk of
disproportionate punishment.  Because
that holding is sufficient to decide these cases, we do not consider
[defendants’] alternative argument that the Eighth Amendment requires a
categorical bar on life without parole for juveniles, or at least for those 14
and younger.  But given all we have said
in Roper, Graham, and this decision
about children’s diminished culpability and heightened capacity for change, we
think appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon.  That is
especially so because of the great difficulty we noted in Roper and Graham of
distinguishing at this early age between ‘the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’ 
[Citations.]  Although we do not
foreclose a sentencer’s ability to make that judgment in homicide cases, we
require it to take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in
prison.”  (Miller,
supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2469].)

California’s sentencing scheme does
not suffer from the same constitutional deficiency as the statutes in >Miller. 
The sentence of life in prison without the possibility of parole was not
mandatory because Penal Code section 190.5, subdivision (b) gave the trial
court discretion to impose a sentence of 25 years to life. 

The trial court was aware of this
discretion and chose not to exercise it.href="#_ftn6" name="_ftnref6" title="">^[6]  At sentencing, the trial court explained
there were mitigating factors, including Marquez’s “horrific childhood,” which
included physical abuse, emotional abuse, and abandonment.  The trial court, however, observed that
Marquez was exposed to counseling to treat the issues caused by his
upbringing.  It noted Marquez’s prior
criminal record involved minor issues that appeared to be the product of his
upbringing.  It recognized that Marquez
was 17 at the time the offense was committed, he had expressed remorse for the
crime, and he had accepted that he was going to be punished severely for his
actions. 

The trial court, however, noted the
victim did nothing to provoke Marquez, who ambushed the victim in the hope of
robbing her.  The trial court observed
that Marquez brought a knife to the scene and noted the viciousness of the
crime (19 stab wounds) that “clearly evidenced an intent to kill.”  Finally, the trial court recognized that
rehabilitation was one of the legislative goals when it established the
punishment for a crime, but “[r]ehabilitation in these matters is the least
weighty consideration.  It’s an important
one, but it’s the least weighty.”  It
then chose the term of life without the possibility of parole. 

Neither party provides any
illumination to what we see as the real issue in this case:  Is this one of the uncommon cases where it is
appropriate to sentence a juvenile to the harshest possible penalty?  (Miller,
supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2469].)  To answer that question, one must consider
the factors set forth in Miller,
i.e., (1) Marquez’s age, immaturity, impetuosity, and failure to
appreciate the risks and consequences of his actions, (2) Marquez’s family and
home environment, (3) the circumstances of the offense, including peer
pressures that may have affected him, (4) how the “incompetencies
associated with youth” affected his conviction, and (5) the possibility of
rehabilitation.  (Id. at p. ___ [132 S.Ct. at p. 2468].)

Because Miller had not yet been decided, the trial court sentenced Marquez
without fully considering the implications of the Eighth Amendment.  Undoubtedly, the trial court considered some
of the Miller factors.  It is clear, however, other factors were not
considered or were found to have little weight in the sentencing decision, even
though Miller suggests
otherwise.  For these reasons, we feel
compelled to reverse the judgment and remand the matter for resentencing to
satisfy the constitutional concerns raised by Miller.

On remand, the trial court must
give thorough consideration to the Miller
factors, many of which readily appear in this record.  A review of the record reveals numerous
factors that must be considered, including (1) the virtual unanimous conclusion
of the five mental health professionals that Marquez suffers borderline
intellectual functioning, substance abuse, and psychiatric disorders, including
posttraumatic stress disorder, and schizoaffective disorder bipolar type, (2)
the long history of psychiatric treatment and medication, (3) the physical and
emotional abuse thoroughly set forth in the psychiatric evaluations that
undoubtedly contributed to the substance abuse and psychiatric diagnosis, (4)
the motive for the crimes (to get money for clothes and because the victim
disrespected him previously), suggesting peer pressure may have influenced his
actions, (5) the strong evidence of the “incompetencies associated with youth”
that appear in the record including, (a) Marquez refusing to request the
assistance of counsel, even though he was involved in a murder, (b) Marquez
providing the only evidence that allowed the jury to find the special
circumstance of robbery to be true, (c) Marquez repeatedly confronting and
refusing to assist his attorney, thus hampering his defense, and
(d) Marquez refusing to attend most of the trial despite the encouragement
of the trial court and counsel to do so, and (6) the possibility of rehabilitation,
including Marquez’s remorse, if any, and potential for growth and change. 

Only after these factors, and any
others the trial court identifies, are thoroughly examined can a reasoned
sentencing decision be made that will satisfy constitutional concerns.  The trial court cannot be criticized for
failing to anticipate the Supreme Court’s decision in Miller, but to meet constitutional concerns the sentencing decision
must be informed by Miller.  Remand will permit these concerns to be
addressed fully.href="#_ftn7" name="_ftnref7"
title="">^[7]

DISPOSITION

The judgment is reversed and the
matter is remanded to the trial court for resentencing.  The conviction is affirmed in all other
respects.

 

                                                                                                            _____________________

CORNELL, Acting P.J.

 

I CONCUR:

 

 

_____________________

GOMES, J.