P. v. McFadden
Filed 8/7/13 P. v. McFadden CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
>
THE PEOPLE, Plaintiff and Respondent, v. EMANUEL EDWARD MCFADDEN, Defendant and Appellant. | E055069 (Super.Ct.No. FBA1100054) OPINION |
APPEAL
from the Superior Court of
Bernardino County. Victor R. Stull,
Judge. Affirmed with directions.
Richard
Jay Moller, 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, Seth Friedman, Peter
Quon, Jr., and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and
Respondent.
A
jury convicted defendant, Emanuel McFadden, of inflicting corporal injury on a
cohabitant (Pen. Code, § section 273.5, subd. (a)).
found true allegations that defendant had suffered two strike priors (§ 667,
subds. (b)-(i)) and six prior convictions for which he served prison terms (§
667.5, subd. (b)). He was sentenced to
prison for 25 years to life plus four years and appeals, claiming the trial
court should have granted his requests for substitution of counsel, evidence of
prior acts of domestic violence should
have been excluded and his request to dismiss one or both of his strike priors
should have been granted. We reject his
contentions and affirm, while directing the trial court to correct an error in
the abstract of judgment.
The
victim testified as follows: As of January 23, 2011, she had been defendant’s
cohabitating girlfriend for seven months.
Sometime after noon, she was sitting on the couch in the living room
with defendant’s minor nephew when an acquaintance came to the door, asking for
a cigarette. She awoke defendant, who
was sleeping in their bedroom, and told him about the request. After the acquaintance left, defendant
entered the living room, grabbed the bowl of noodles she was holding and hit
her on the back of the head with it, breaking the bowl, while saying, “Bitch,
you disrespected me.†The victim
responded with cussing. Defendant
punched the victim from her face to her chest.
The victim got off the couch and defendant pulled her down the hallway
to the bedroom by her hair, pulling out her extensions, while continuing to
punch her because she had tried to run away.
The victim did not fight back, but pulled herself into the fetal
position after falling on the bed while defendant continued to punch her and
pull her hair. The victim rolled onto
the other side of the bed and got up, but defendant came over and continued to
punch her. He hit her with a “door railâ€
or dowel on the shin and stomach. He also
choked her. She ran out of the house and
across the street, but defendant caught up with her, grabbed her and said,
“Bitch, get your ass back in the house.â€
She went back inside and defendant beat her and his nephew. She told his nephew to call the police. Defendant hit her face and body, opening up
one of the stitches she had received earlier in the day above her eye. Defendant went into the living room where his
nephew was on the phone with the police, asked his nephew if the latter had
called the police and when the nephew said he had, defendant ran into the
bedroom, changed his shirt and left the house.
The victim verified that the defendant had inflicted the injuries that
were depicted in pictures of her taken by the police when they arrived. She also identified pictures taken at the
scene that depicted her hair extensions on the floor of her home. She told the police who arrived what
defendant had done to her, including punching her, cutting her above the eye
and hitting her with a stick. After the
police left, defendant returned to the home, but the victim hid from him in the
closet. Defendant screamed the victim’s
name, but she did not come out.
Defendant’s nephew called the police again, but by the time they
arrived, defendant had left.
The
victim kept in contact with defendant after he was arrested, talking to him on
the phone and writing him letters.
During one of those calls, in late January or early February, a
recording of which was played for the jury, defendant told the victim that if
she did not cooperate, the police and the prosecutor had nothing to use against
him and “[i]t could be beat . . . if my witnesses don’t
come.†In another call, around the same
time, the victim repeated back to defendant what he had told her about there
being no case if there were no witnesses.
Defendant told the victim that she could not come to court and she could
not be forced to testify against him—that she could be threatened with being
taken to jail, but the most time she would get would be 30 days. The victim reported to defendant that she was
trying to get some third person to get defendant’s nephew out of the area and
“just chill. Defendant instructed the
victim to get the paperwork for the nephew and take him out of school. She testified that she understood this to
mean that she and defendant’s nephew should not show up for trial. Defendant commented that the pictures the
prosecutor had (presumably of her injuries) were bad for his case. Defendant instructed the victim to say that
she got her injuries on the railroad tracks which would leave law enforcement
and the prosecutor’s office with nothing.
He told her that she should forgive and forget the injuries that were
inflicted on her on the 23rd. He urged
her to go to the police station and claim that she had filed a false report
against him and she forced his nephew to say what the latter had said about the
incident. She agreed to do the
latter. At the end of the call, she and
defendant exchanged “I love youâ€s.
She
testified that defendant instructed the victim to drop the charge against him
and she wanted to protect him because she still loved him. At the preliminary
hearing, she said the injuries she sustained on January 23rd occurred when
she fell on the railroad tracks while intoxicated. She lied and said that defendant had not hurt
her on that day in order to help him.
On
March 3, 2011, she told a defense investigator the same story about falling on
the railroad tracks. She lied when she
told the investigator that a friend
name="_ftnref2" title="">[2] had picked her up by the tracks, taken her to
the hospital and returned her home, where she used drugs and drank. She lied when she told the investigator that
after the acquaintance who came to the door looking for a cigarette had left,
she had lost control, called defendant a son of a bitch, threw defendant on the
couch and started tearing up the house.
She also lied when she told the investigator that she had gotten mad at
defendant because he had gotten out of bed to talk to the acquaintance who came
to the door looking for a cigarette, but defendant would not get up to drink
with her.
She
testified that she had written a letter to the Public Defender’s Office, which
was introduced into evidence. In the
letter, she repeated the above-mentioned story, adding that she grabbed defendant
while going crazy, yelling and screaming and punching the walls. She wrote that she and defendant yelled back
and forth, defendant told her to calm down and take her medications for bipolar
disorder and schizophrenia and defendant’s nephew called the police and
reported that defendant was beating the victim even though he wasn’t. She said in the letter that defendant’s
nephew had anger problems and had gotten mad at defendant for the latter not
letting him play with the Play Station.
She also said in the letter that the nephew had said that he was going
to get defendant out of the house, the nephew had a habit of lying, which was
documented in his medical records, and she was removing the extensions from her
hair which is why they were all over the house.
At
trial she testified that this letter contained lies, she had written it to
cover for defendant and a woman who eventually testified at trial for the
defense had helped her write it.
She
testified that she was bipolar, schizophrenic, had a heart condition and was
not taking her medications on January 23.
She admitted that she had changed her story three or four times. She also admitted that on numerous occasions,
she had filed false domestic violence police reports against her mother,
ex-husband, sister and son when she was a crack addict. She testified that she had told a sheriff’s
deputy in May 2011, that defendant’s sister had threatened to “whoop [the
victim’s] ass†concerning this case. She
denied telling defendant’s nephew what to say, even though, at the beginning,
she told him not to say anything.
A
recording of an interview the victim had with the police after they arrived at
her house the first time on January 23, 2011 was played for the jury. In it, the victim said that defendant beat
her. She admitted that she had anger
problems and a rap sheet. She also said
that defendant was very violent and was known to shoot people, so she was
afraid to go to court. She said that a
few days prior, defendant had scratched her neck, but January 23 was the first
time he had actually beaten her to the extent he did. She reported that defendant used a stick on
her, threw a bowl and broke it and choked her because she “met a tall guy who
wanted a cigarette.†She said that
defendant had dragged her to the bedroom, beaten her while she was on the bed
and she rolled over but he went to the other side of the bed and continued to
beat her, she ran out the door while defendant was talking to his nephew, but
defendant caught up with her, grabbed her by the hair and returned her to the
house.
The
officer who arrived at the victim’s home testified that he got there around
8:00 p.m. and the victim was upset and she muttered and cried. There was a cut above her eye, and some
stitches that were there had been pulled open.
She had injuries that were documented in photographs that were shown to
the jury. Bits of hair were in the
living room, kitchen, hall and bedroom.
A broken bowl was in the living room and a dowel was on the couch near
the bowl. There was what appeared to be
blood in the bedroom.
Defendant’s
nephew testified that after the acquaintance who wanted the cigarette left,
defendant began beating the victim’s face with his fist in the living
room. The victim screamed, cried and
told defendant to stop and the nephew also told him the same. Defendant threw the bowl of noodles on the
victim’s head as she lay on the floor, breaking the bowl. He also punched the victim in the head. Defendant pulled the victim by her hair down
the hall into the bedroom, causing some of her hair to come out. Defendant and the victim yelled at each
other. The victim ran out the bedroom
door, defendant told her to get back inside, then she ran out the front
door. Defendant chased the victim and
returned her to the bedroom, with his hands on her shoulders, while kicking her
in the leg. While they were in the
bedroom, the nephew called the police as directed to by the victim. When defendant found out that his nephew had
called the police, he ran out the back door of the home. The nephew called the police a second time
after defendant had returned to the home, unsuccessfully tried to get in
through the back and front doors, and then entered through a window. Once inside, defendant saw his nephew, who
was again on the phone to the police, and he asked him why he “kept†calling
the police. This time, defendant left
through the front door before the officers returned to the home.
Evidence
was introduced that defendant had suffered a conviction in 2000 for misdemeanor
domestic battery and another in 2010, the latter involving his ex-wife.
A
woman and her husband were the only two witnesses to testify for the defense
other than defendant. She testified that
she tried to put extensions in the victim’s hair on either January 22nd or
23rd, but the victim pulled them out, leaving them on the floor, because she
wanted other extensions. This witness’s
husband testified that he took the victim to the hospital because she had an
injury to her right eye, then he took defendant to the hospital and they waited
until the victim was released, then he returned both to their home. He testified that the victim told him that
she had fallen on the railroad tracks.
He claimed that the victim had offered him money for his testimony, but
he admitted that he did not know whether she wanted him to testify for or
against defendant.
Defendant
testified that the man who came to the home on January 23 was not welcome
because he supplied the victim with drugs.
After the man left, defendant told the victim that a “ho was going to be
a ho.†Defendant claimed that both he
and the victim had consumed drugs the day before and he had “smoked a loomâ€
that day. The victim called defendant a
mother fucker, threw the bowl of noodles at him and he threw the bowl
back. She then pulled him onto the bowl
and they struggled. He denied hitting
her face with his fist. Defendant told
the victim to go to the bedroom. While
there, both got physical, but he denied beating the victim on the bed, pulling
her hair or hitting her with the dowel.
The victim ripped defendant’s shirt, so he changed it. Both yelled and called the other names. He left the home when the police were called
because he was on parole. When he
returned to the house, he went in through the window because no one would
answer the door. His nephew was on the
phone to the police, so defendant left again.
He returned to the home later, eventually was reunited with the victim
and spent the night at the house and part of the next day until he was arrested
there. He admitted that he did not tell
the police when they interviewed him the day he was arrested that the victim
had thrown the bowl at him
name="_ftnref3" title="">[3] or that the two had struggled with each
other. He denied engaging in the
assaultive acts the victim and the nephew had testified he had committed. He admitted grabbing the phone from his
nephew the second time the latter called the police and hanging it up. He admitted telling the victim during one of
their recorded jail calls that his nephew should be moved and that if there
were no witnesses, there would be no case against him and it would be
dismissed. During one of the calls, the
victim apologized to defendant for allowing the acquaintance who had wanted the
cigarette into the home, saying it was disrespectful to defendant. Defendant admitted that he had gotten mad
when the victim let this man in the house and had called the victim a bitch and
a “ho.†He also admitted telling her
during a call to say that she had gotten her injuries on the railroad tracks
and that she should forgive and forget.
He admitted that in the recorded calls that were introduced into
evidence, he had not confronted the victim about throwing the bowl at him. He also admitted that during the calls he had
said “no witnesses, no case†and that they had discussed getting rid of his
nephew. Defendant was impeached with
prior convictions for domestic violence.
Other
facts will be disclosed as they are relevant to the issues discussed.
and Discussion
1.
Counsel
Trial
counsel for defendant began representing defendant on February 1, 2011. On May 13, 2011, both sides declared that
they were ready for trial. On May 16,
2011, the first day of trial, motions in limine were heard and voir dire was
conducted. On the second day of trial,
May 17, 2011, defendant requested a Marsden
attorney: 1) spoke to him for the first time the previous day, 2) did not want
defendant to testify, 3) did not tell defendant that defendant’s ex-wife was
going to testify against him, 4) had not given defendant “paperwork†concerning
trial witnesses, 5) never “took†defendant’s statement about the offense, 6)
failed to bring in men from Las Vegas who had allegedly been lied to by the
victim, and 7) had not filed any motions of which defendant was aware.
was not “ready for trial.†Defendant
explained that he wanted motions concerning his ex-wife’s violence towards him
filed. Defendant said he would “have to
go pro per.†Defendant asserted that
when he told the defense investigator that it was not the victim who called 911
to report the offense, but his nephew, the investigator got mad and walked out
on him. He also accused the defense
investigator of offering the victim $20,000 to testify against him. He claimed that both she and defense counsel
had stopped talking to him. Defendant disclosed
that he had letters from the victim in which the latter made statements about
the offense and apologized for making allegations against defendant.
Defense
counsel responded that his investigator had spoken with defendant “almost every
time†defendant had appeared in court and had updated defendant each time.
that one was in prison and the other was dead.
He asserted that his investigator had conducted interviews of the
witnesses the defense intended to call at trial and had had several interviews
with the “supposed victims in this case.â€
defendant’s ex-wife claimed that defendant had assaulted her and that she had
threatened defendant with domestic violence and was on probation for that. He reported that three people had claimed to
be victimized by either the victim or defendant’s ex-wife and all three were
scheduled to testify for the defense.
However, if the trial court admitted evidence of the victim’s past acts
of violence, the court would allow in evidence of defendants’ past acts of
violence. Counsel had advised defendant
not to testify, but he admitted that he could not stop defendant from doing
so. He reported that neither he nor his
investigator knew until the day before that defendant had letters from the
victim, he had not yet seen them and defendant had admitted to him failing to
tell the defense investigator about them.
The
trial court explained to defendant that evidence could be admitted about
defendant’s past acts that bear on his veracity should he testify, including
crimes involving theft and violence. The
court also explained that the victim and defendant’s ex-wife could be impeached
with their prior bad acts without defendant being impeached with his if he did
not testify. However, if the defense
presented evidence about prior acts by the victim and/or the ex-wife to show
that they were violent, then evidence of defendant’s prior acts of violence
could come in.
When
defendant said he wanted two particular witnesses to testify to past violent
acts by the ex-wife, defense counsel responded that he wanted to keep the
evidence concerning the ex-wife at a minimum.
Defendant
repeated that he was not ready for trial, that he wanted to fire his attorney
and go “pro per†so he “could look these things up.†Defendant said if the court would grant a two
month continuance, he would want his attorney to talk to him and bring him the
statements of all the witnesses. After
defendant admitted that he had not shown the letters from the victim to his
attorney until the day before (despite the fact that he had been receiving them
“practically every day†since the day he was arrested), counsel said, “I have
difficulties continuing to represent [defendant].†Counsel advised the trial court, if it was
inclined to grant defendant’s Faretta
motion, to warn defendant that he was going up against a good attorney, i.e.,
the prosecutor. Defendant accused his
attorney of improper representation based on the defense investigator’s and his
attorney’s representations that he probably would not be convicted of a felony
and a prior defense investigator telling him that, given the victim’s
“history,†the case probably would not go to trial but if the prosecutor wanted
to press it, “let her.†The trial court
pointed out to defendant that the investigator and his attorney had the right
to share with him their evaluation of the case.
The
trial court denied defendant’s request to relieve counsel, saying that counsel
had been providing defendant with adequate representation, there was no irreconcilable
conflict between them and “no substantial impairment†of the attorney/client
relationship. The court offered that if,
based on the letters from the victim, counsel wanted a continuance, the court
would grant it, however, what witnesses to call and how to cross-examine
witnesses and other tactical decisions were matters for counsel to make. The court then denied defendant’s request to
represent himself.
Later
that day, in response to the trial court’s inquiry whether defendant wanted to
renew his request to represent himself, defendant said he did, adding that he
was not ready for trial—that he had “things to study.†The trial court pointed out that if it
granted defendant self-representation, there would be no continuance—that he
could “study things†as trial progressed.
The court gave defendant the Faretta
form, but defendant refused to sign it.
The court warned defendant of the pitfalls of self-representation,
adding that if defendant continued to be represented by counsel, it would be by
his current attorney. Defendant
responded that he was not capable of representing himself. The trial court denied his
Two
days later, defendant again requested to represent himself, accusing the
defense investigator of telling him that he was going to be convicted of a
felony. Defendant asserted that he
refused to go to trial “with these people.â€
Defendant then clarified that the defense investigator had told him that
if he contacted his ex-wife, he was guilty of a felony. At this point, a second Marsden hearing took place.
At
that hearing, the defense investigator told the court that defendant had told
her that he had written a letter the night before to his ex-wife and the
investigator told defendant that that could be viewed as an attempt by him to
intimidate a witness, which was a felony, and he should not do this. The trial court echoed these sentiments. When defendant interrupted the trial court,
the latter told defendant to “[s]hut up†and defense counsel echoed that
sentiment. Defendant then accused either
the trial court, counsel or both of “railroading†him through trial. He added that he was on “psyche meds.†The trial court asked defendant if he wanted
to represent himself. Defendant repeated
that he was going to get “railroaded.â€
He added that he needed a new attorney.
The trial court denied his motion to relieve counsel “[f]or the same
reasons . . . expressed†when the first such motion was
denied and his motion to represent himself was denied as untimely. The court then apologized to defendant for
telling him to shut up.
Over
the rest of that day and the first part of the next court day, the People
presented most of their case in chief and the parties discussed jury
instructions. After the noon recess the
second day, defendant said that he had asked to talk to his attorney, but the
latter had told defendant to eat his lunch.
Defendant said that his attorney had not seen him or “counseled him on
anything.†Defendant repeated that he
was rushed into trial, that defense counsel “did not file anything for
witnesses for me†and he was being railroaded.
Defendant admitted that the defense investigator had talked to him the
previous day (which was a Sunday).
Defense counsel said the conversation had lasted two hours—defendant
said it lasted 15 minutes and he was told nothing other than that he was going
to testify and they “do things to get an appeal.†Defendant told counsel that he was fired and
that he was getting railroaded. He
appeared to accuse the prosecutor of coercing his nephew, who testified against
him. The court said defendant had not
given it a reason to excuse counsel, who would continue to represent
defendant. Defendant then said that he
and his attorney had a disagreement.
When defendant asserted that neither his attorney nor the defense
investigator had listened to his version of the crime, the court held a third
At
the hearing, defense counsel denied defendant’s accusation that he did not know
defendant’s side of the story. Counsel
asserted that defendant had told him things that, in counsel’s opinion, made it
impossible for defendant to testify.
Counsel said he had sent his investigator to the jail the day before to
discuss with defendant what defendant planned to say on the stand and had
discussed this information with his investigator after her meeting with
defendant and that morning. Counsel said
that he had advised defendant that nothing defendant planned to say on the
stand would help defendant. Counsel
reiterated that he could not stop defendant from testifying. Defendant launched into another complaint
about not having a “motion hearing to see the evidence that’s been up against
me†and not having any paperwork or knowing any witness’s statements. Defense counsel repeated that during almost
each of defendant’s court appearances, defendant had met with him or the
defense investigator and any reports were read to defendant. Defendant interrupted counsel, saying,
“ . . . [Y]ou’re fired!
You’re fired! [¶] I want to represent myself. You can’t make me keep him. It’s my right to fire him.†The trial court reminded defendant that they
were in the middle of a trial and denied his motion for self-representation as
untimely. Defendant demanded that the
court force defense counsel to turn over to it the written report of
defendant’s version of the crime and the court declined, saying counsel did not
need to have a written report, as long as he knew defendant’s version of the
events. Defendant responded that he had
not told his attorney anything. The
trial court then denied defendant’s request to discharge counsel and to
represent himself, the latter because it was untimely. Soon thereafter, the People rested their
case-in-chief.
The
next day, the defense presented its case and the prosecution presented its
rebuttal. The following day, arguments
were presented, the jury was instructed and the jury deliberated and returned a
verdict of guilty. During the next court
day, the trial court found true all the allegations concerning defendant’s
prior convictions.
About
a month later, defendant made his fourth Marsden
motion. Defendant said his attorney did
not cross-examine one of the witnesses against him. He asserted that counsel did not call a
particular witness who would have testified to the afore-mentioned witness’s
“psychological problem and his ability to recount things.†He added that this latter witness would also
testify that she was either threatening the victim “not to come to court on
[defendant]†or was threatened by the victim.
He also said he wanted the psychologist of the first mentioned witness
called. He criticized counsel for not
making an opening statement. He said
counsel did not question a police officer about the difference between his
testimony about moving a stick the victim said defendant had used to beat her
from one room to another and what the officer had said about it in his
report. He also accused the same officer
of “coercing†the victim by asking her at the scene of the crime leading
questions about what had happened, implying that counsel should have asked the
officer about this. He said that defense
counsel did not ask some questions defendant wanted asked, but defendant did
not specify what they were. He asserted
that the way counsel questioned him did not allow him to get his version of
events out. He claimed that after he
complimented counsel on the way the latter had cross-examined the victim,
counsel told the victim, “Fuck you.†He
said that counsel was aware that the victim was threatening defense witnesses
to not come to court, but he did not bring that to the jury’s attention. He also accused the prosecutor of offering
the victim $6,000 for convicting him, about which counsel should have
questioned the victim. He felt his
attorney should have brought a motion to exclude pictures of the victim’s
wounds. Defendant asserted that the
wounds were self-inflicted. He said
counsel should have cross-examined the victim about her history of violence and
drug abuse. He reasserted that counsel
and the defense investigator had told him that they did not believe he would be
convicted of a felony. Finally, he said
that his attorney told the prosecutor that defendant was guilty, but was
pretending to be innocent.
Defendant’s
attorney explained that he did not cross-examine a particular prosecution
witness because he feared more damaging information to defendant coming in as a
result of it. He did not give an opening
statement at the beginning of trial because the victim had given several
different accounts of the crime and counsel had no idea what she was going to
testify to on the stand. Counsel did not
give an opening statement at the beginning of the defense case-in-chief because
he did not know to what defendant was going to testify. Concerning cross-examining the officer about
the movement of the stick, counsel said that the victim had moved the stick and
he did not recall if the stick was placed where it was when it was
photographed, or the victim placed it there or the officer. Moreover, it was not an important point. Counsel said he had no information, other
than defendant’s accusation, that the officer had coerced the victim. Counsel admitted that defendant wrote him
notes during trial, which counsel read, but he did not recall that defendant
asked him to ask particular questions.
As to counsel’s redirect examination of defendant following his
cross-examination by the prosecutor, counsel said that, in his opinion,
defendant performed very poorly during cross-examination and he did not want to
create more opportunities for the prosecutor to undermine defendant’s
testimony. Further, although defendant
wanted counsel to bring out the victim’s history of violence, he made a
tactical decision to avoid it so defendant’s history of violence would not be
brought out. Counsel admitted telling
defendant “Fuck you†when defendant complimented him on his cross-examination
of the victim. As to the $6,000 that was
supposedly offered to the victim for her testimony against defendant, counsel
said that there were discussions about compensating the victim for her medical
bills by the Victim’s Compensation Board, and the victim commented in letters
to defendant that this money would not make her not love him and the issue was
covered during her testimony. Counsel
denied failing to cross-examine the victim about her drug use—he asserted that
there was plenty of evidence about the fact that she was a “crack head,†a
matter with which the trial judge agreed.
Counsel said he was careful to cross-examine her about her history of
making false reports, but not about her history of violence, as it would open
the door to evidence of defendant’s history of violence coming in. Counsel stated that contrary to defendant’s
representation to the trial court, one of the defense witnesses had testified
that he had been threatened by the victim.
As to another defense witness, she did not tell the defense that she had
been threatened by the victim until she had concluded her testimony. However, she performed so poorly on the
witness stand that counsel did not believe it would have helped defendant to
bring her back and question her about it.
Counsel did not recall making a statement to the prosecutor that
defendant was guilty but pretended to be innocent. He explained that although he told defendant
that defendant might end up with a misdemeanor conviction because of the two
assaults defendant perpetrated on the victim the day of the crime, defendant
had been charged only for the later assault, during which no injuries
occurred. Counsel listed the legal
matters he discussed with defendant and explained his trial strategy. As to communication between them, counsel
observed that defendant was difficult, does not listen well and hears things
the way he wants to hear them. Counsel
added, “[Defendant] is not receptive to hearing opinions contrary to his
own. I have known [him] from other cases
[in which he represented defendant] for probably 15 years. Unfortunately for [defendant] this is the
first [case] we did not get through with at least some success.†Counsel reasserted that defendant had been
given updates every time he made an appearance before trial and had been told
that it could not be guessed how the jury reacted to the victim’s
testimony. Additionally, defendant was
told that his nephew posed a large problem to the defense, and the letters and
phone calls concerning his nephew “hurt [defendant] probably more than his own
testimony did.†Counsel said he moved
the pretrial process along so as to avoid the prosecutor charging defendant
with two counts of violating section 273, rather than one, and this was
explained to defendant by either counsel or the defense investigator. As to the letters between defendant and the
victim, counsel said he believed that they could be used as evidence of a
defendant was attempting to keep his nephew from testifying, and the victim was
confirming her desire to help defendant do that. In his opinion, the letters did not contain
evidence that the victim had lied to the police about the events of January 23,
2011. Counsel said that nothing
defendant had said about him impacted his ability to represent defendant.
The
trial court concluded that based on what it had observed during trial and what
it had been told by defendant and counsel, defendant had not made a colorable
claim that the latter was ineffective.
The court added that even if it did make this finding, it would exercise
its discretion not to appoint new counsel to bring a motion for a new trial
based on ineffectiveness of trial counsel.
Defendant’s motion for a new trial on other grounds, his
proceed with defense counsel representing defendant.
One month later, on the
day set for sentencing, defendant filed a request to represent himself. The trial court reviewed defendant’s
prior requests to represent himself, which the court denied as untimely, at
this point, they were not faced with the time pressures of trial coming up
soon, so the court was more inclined to grant defendant’s request. The court explained to defendant the dangers
of self-representation. Defendant asserted
that something(s) the defense investigator said to him forced him to ask to
represent himself. The trial court
cleared the courtroom and defendant asserted that, despite his attorney’s
representation to the court that the one of the witnesses defendant wanted to
testify about what the victim had done to him was dead and the other was in
prison, the defense investigator had told him that she had located both of
them. Defendant then accused the
investigator of lying to him and arguing with him and said he wanted a new
attorney and if the court would not appoint one, he wanted to represent himself
because “these people are not for me.â€
He again asserted that he was being railroaded and that he was deprived
of the opportunity to call witnesses.
At a continuation of
this hearing, which became defendant’s fifth Marsden hearing, defendant asserted that the prosecutor had
exculpatory evidence that she did not turn over to the defense. Defendant gave the court a letter he said the
victim had written to him five days after his arrest, in January 2011, in which
the victim asserted that someone had told her not to come to court. Defendant said that in her letters to him,
the victim confessed that she had abused him physically, that she had accused
him because she was angry and that his nephew had made up the whole story of
defendant assaulting her. He accused his
attorney of failing to adequately investigate his nephew to uncover the fact
that the latter was a liar and cross-examine him about it. Defendant said the prosecutor should not have
been able to use his prior conviction of violating section 243 as Evidence Code
section 1109 evidence. Defendant
repeated that his attorney did not communicate with him. He asserted that it was his belief that he
should have been able to make decisions about what witnesses to call and how to
question witnesses. Defendant listed the
witnesses he wanted called who were not.
He said that his attorney questioned him in a way that hurt him more
than it helped him. He complained that
he was not allowed to ask witnesses questions.
Defense counsel
identified the evidence that defendant claimed was missing that was exculpatory
as transcripts of interviews. Counsel
repeated that of the letters he had from the victim, none contain an admission
by her that she had lied to the police.
He said that a letter discussing defendant’s nephew being told what to
say had been placed into evidence. He
said that the only things redacted from the phone calls were references to
defendant’s prior record. He repeated
that he did not bring in evidence the letters the victim had written defendant
about her violence towards him because he did not want evidence of defendant’s
past violent acts being introduced and the victim had admitted, while
testifying, to engaging in bad acts in Las Vegas. Counsel again explained why he did not want
to investigate or question defendant’s nephew about his background. Counsel denied that either Las Vegas
potential witness could be located. He
also said that the victim had already documented her own violent history. As to defendant’s assertion that the defense
had not communicated with him, counsel asserted that he had had conversations
with defendant at jail and the defense investigator had discussed the letters
and defendant’s wish to testify with defendant during visits at the jail. Additionally, he reasserted that each time
defendant had appeared in court pretrial, either he or one of the two defense
investigators had spoken to defendant.
The second defense investigator had had 13 contacts with defendant. Counsel also said that he talked to defendant
every day during trial. He explained why
he had examined defendant the way he did.
Counsel concluded that there was enough evidence, in his opinion, of a
breakdown between him and defendant such that defendant should file a motion
for a new trial on the basis of ineffective assistance of counsel with the
assistance of new counsel or while representing himself.
The court concluded that
defendant’s complaint that counsel was ineffective was not “legally
sustainable†and it denied defendant’s motion to have new counsel
appointed. The court pointed out to
defendant, as he argued with it, that the decisions as to what questions to ask
on cross-examination or whether to conduct cross-examination were tactical ones
for counsel to make. The court also
concluded that defense counsel had given an “informed reason†for not calling
certain witnesses. Defendant withdrew
his request to represent himself.
In claiming that the
trial court erred in failing to grant defendant’s “request†for appointment of
new counsel, defendant provides a much more truncated summary of his five
above and asserts, “the trial court abused its discretion in denying at least
one of [defendant’s] Marsden
motions.†From this statement, defendant
jumps to the next, as follows, “[Defendant’s] less than stellar testimony at
trial supported his claim that defense counsel did not prepare him to testify,
and . . . never spoke with him, evidencing a lack of
communication.†Unfortunately,
defendant’s less than stellar performance on the stand could be more an
indication that counsel was correct in his assessment of defendant as a person
who was difficult, did not listen well, heard things the way he wanted to hear
them, and was not receptive to opinions that were contrary to his own, and his
opinion that defendant should not have testified in the first place, rather
than a sign that the two did not communicate.
This description, which is born out by the record, also explains why
both the trial court and defense counsel at one point, lost patience with
defendant, who was interrupting the court, and told him to shut up, why defense
counsel told defendant to eat his lunch and why counsel’s admitted response to
defendant’s compliment about counsel’s cross-examination of the victim was a
“fuck you.â€
title="">[9] However, contrary to defendant’s current
assertion, they did not show that the relationship between the two had broken
down. As stated above, at the time these
statements had been made, counsel maintained that he could still represent
defendant effectively and bore no ill will towards defendant. Moreover, defendant’s claim that “counsel
never spoke to him†was contradicted both by defendant’s own statements and
those of counsel, as set forth above, which the trial court obviously believed,
as it was entitled to do. (
696.) Defendant here cherry picking
certain seemingly inflammatory statements made by trial counsel and defendant
during the lengthy proceedings involving these five Marsden motions is not particularly helpful. For example, counsel’s statement during the
hearing on the first motion that he was having difficulties continuing to
represent defendant was probably born out of his frustration with the fact that
defendant had not told him about the letters he had been receiving from the
victim almost daily since his arrest.
The fact that counsel told the court, after the verdict, that he could
not author a motion for a new trial on the basis of incompetency of trial
counsel was not, as defendant now appears to suggest, an indication of a
breakdown in the relationship between the two, but a statement of simple and
undisputed fact—defense counsel had a conflict of interest in claiming that he,
himself, had incompetently represented defendant at trial and because of this,
defendant should be given a new trial.
Finally, as the trial court pointed out, defense counsel’s opinion,
during the hearing on the fifth Marsden
motion, that there was enough evidence of a breakdown in the relationship
between the two to justify the appointment of new counsel, was not for counsel,
but for the trial court, to make. (
606; People v. Michaels (2002) 28
Cal.4th 486, 522.) Additionally,
defendant completely fails to show that the failure to appoint new counsel
substantially impaired defendant’s right to a fair trial, as is required. (People
v. Webster (1991) 54 Cal.3d 411, 435.)
2.
Admission of Evidence Code Section
1109 Evidence
Before trial began, the
People gave notice of their intent to introduce into evidence, pursuant to
Evidence Code section 1109,
name="_ftnref10" title="">[10] the fact that defendant engaged in conduct that
resulted in his being convicted of a misdemeanor violation of section 245,
subdivision (a)(1), among other acts of domestic violence in 2010. At a hearing on the admissibility of this
evidence, the People added a second prior conviction—in 2000—for a misdemeanor
violation of section 243, subdivision (e)(1).
As to the latter, the People argued that defendant had been “primarilyâ€
in custody since committing it, therefore, the fact that it was more than 10
years old should not justify excluding evidence of it. The trial court agreed. The court noted that defendant had pled
guilty to it. The court also concluded
that introducing evidence of the conviction would not unduly consume time or
confuse the jury. The court noted that
the only similarity between it and the current offense was that both involved
domestic violence against a spouse or cohabitant. The court concluded that the probative value
of the evidence outweighed its prejudicial impact. The court found that evidence of the
conviction was admissible.
As to the 2010 incident,
the People represented to the trial court that defendant and his soon-to-be
ex-wife (hereinafter, “ex-wifeâ€) had been living together when defendant called
her and asked for a ride. Because defendant
had been drinking the ex-wife refused to give him a ride. Defendant entered the home and, while the
ex-wife was asleep on the couch, jumped on top of her and scratched her face,
asking her how she liked it. They then
engaged in mutual combat and the police were called. The prosecutor represented to the court that
in the instant case, defendant beat the victim, his live-in girlfriend, with
his fists, hit her legs with a stick, smashed a bowl of noodles on her head,
drug her down the hall to their bedroom by her hair and continued to beat her
with his fists in the bedroom.
Defendant’s nephew called the police and they came out, but defendant
had already left. The police took a
report and left, then defendant returned and tried to sneak into the house, his
nephew called the police again, defendant took the phone from his nephew and
hung it up, then left and the police arrived thereafter.
The court concluded that
the 2010 incident was substantially similar to the charged incident and
evidence of the former would not confuse the jury or consume undue time. The court concluded that the probative value
of the evidence outweighed its prejudicial effect. The court ruled it would allow the ex-wife to
testify about the incident
name="_ftnref11" title="">[11] and the prosecutor to introduce evidence of
defendant’s conviction of the offense resulting from it.
During the People’s
case-in-chief, a deputy district attorney (not the prosecutor) testified for
the prosecution that defendant had been charged in 2000 with misdemeanor
“domestic battery†or “battery on a person in a dating relationship,†to which
defendant had pled guilty. He also
testified that in 2010, defendant had been charged with felony corporal injury
to a spouse (i.e., defendant’s ex-wife), and defendant had pled guilty to a
misdemeanor assault with a deadly weapon or by means of force likely to produce
great bodily injury, as part of a plea bargain.
Copies of documents supporting this testimony were introduced as
exhibits. Because defendant chose to
testify, he was also impeached with both of these prior convictions, along with
a number of others.
There was evidence of
yet another incident of domestic violence introduced at trial. Specifically, at the beginning of her
testimony, the victim had said that on the morning of January 23, 2011,
person who ultimately testified at trial as a defense witness was coming to her
home to finish doing her hair, and defendant had gotten mad and hurt the
victim. Defense counsel’s string of
relevancy and other objections to this line of testimony was largely
overruled. The prosecutor then asked for
a sidebar, during which she objected to defense
counsel interjecting an object to every question she asked about this incident. Counsel said he was not opposed to having a
continuing objection to the entire line of questioning. The trial court said the evidence was
relevant because “it’s all connected.â€
The victim went on to testify that defendant kicked her out the back door,
she went to the front and cussed defendant out, came in the house to get her
stuff and he socked her in her left eye.
Thereafter, defendant got her a towel because she was bleeding, “theyâ€
called a friend, who took both of them to the hospital, where her wound was
stitched, and the friend took them both back home. During the recorded interview of the victim
which was played for the jury, she said that she had gone to the hospital the
morning of January 23 and had gotten stitches.
She also said that when she had gotten hit in the morning, she had told
people at the hospital that she had fallen on the railroad tracks. During his testimony, defendant denied
hitting the victim earlier on January 23.
During argument to the jury, the prosecutor said this incident, as well
as the 2000 conviction and the 2010 conviction, could be used by the jury to
determine whether defendant committed the charged offense during the afternoon
of January 23.
title="">[13] Defendant did not object to this argument.
Although conceding that
several courts of appeal, including this one (People v. Hoover (2000)
77 Cal.App.4th 1020, 1027, 1028 (Hoover)),
domestic violence to prove a currently charged act of domestic violence is not
a violation of due process (People v.
Williams (2008) 159 Cal.App.4th 141, 147; People v. Cabrera (2007) 152 Cal.App.4th 695, 703, 704;
1107, 1120; People v. Price (2004)
120 Cal.App.4th 224, 240; People v.
1096; People v. Jennings (2000) 81
Cal.App.4th 1301, 1309, 1310; People v.
James (2000) 81 Cal.App.4th 1343, 1353; People
v. Brown (2000) 77 Cal.App.4th 1324, 1335; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420), defendant
disagrees. In so doing, he advances a
premise that ignores what actually occurred in this case. He asserts, “[c]onvicting [defendant] of a
crime based largely on evidence that he had committed some other crimes and was
a person of general bad character is a violation
of . . . due process . . . .†However, defendant was not convicted
“largely†on evidence of these prior acts—he was “largely†convicted on the
testimony of the victim and his nephew.
Additionally, there was no evidence introduced that defendant was a
person of general bad character. There
was evidence that the victim was, however, that did not appear to dissuade the
jury from believing her. Defendant
offers no persuasive argument for this court to depart from the position it
took 13 years ago in Hoover.
Next, defendant asserts
that the trial court abused its discretion in concluding that the probative
value of this evidence outweighed its prejudicial effect. Defendant begins with the court’s conclusion
that evidence of the 2000 misdemeanor conviction was admissible in the
interests of justice,
name="_ftnref15" title="">[15] because defendant had not lead a legally
blameless life since suffering that conviction.
Unfortunately for defendant, he completely ignores the trial court’s
justification for its finding and asserts only that because evidence of the
2010 conviction and the incident the morning of January 23 was available for
use by the prosecution, introducing evidence of the 2000 conviction was
“overkill.†However, the trial court’s
finding is supported by the record, and, therefore, we cannot conclude that the
court abused its discretion in determining that the evidence should be admitted
in the interest of justice. Moreover,
defendant did not make this argument below, and, therefore, waived it. (Evid. Code, § 354.)
In what we are assuming
is an argument that the trial court abused its discretion in finding that
evidence of all three incidents was more probative than prejudicial, defendant
calls our attention to four factors he asserts the trial court should have considered,
i.e., the inflammatory nature of the uncharged conduct, the possibility of
confusion of issues, the remoteness in time of the uncharged offense and the
amount of time involved in introducing and refuting evidence of the uncharged
act. (See People v. Branch (2001) 91 Cal.App.4th 274, 282.) However, he applies none but one of these
factors in any but a conclusory fashion to this case, and asserts only, again,
in conclusory fashion, that the probative value of this evidence did not
outweigh its prejudicial impact. This is
insufficient. As to the one factor he
does concretely address, confusion between the incident of the morning of
January 23 and the charged incident that afternoon, he asserts that, somehow,
the trial court’s failure to give a unanimity instruction left the jury
confused about whether the charged offense was the morning or the afternoon
incident. However, trial counsel made it
abundantly clear in their argument to the jury that the charged offense was the
second incident and the morning incident was one of the “other acts†the jury
could consider in determining if defendant committed the charged act.
morning incident, there would have been little cause for the defense to
challenge the testimony of defendant’s nephew as it did, or for the prosecutor,
in his argument to the jury, to elevate the nephew to the position of being the
only person whose testimony could be wholly believed, as, according to the
victim, the nephew did not even witness it and he certainly did not testify
about it. Further, another instruction
given the jury as to the morning incident makes clear that it did not
constitute the charged act.
Defendant then departs
from the four factors he lists, asserting that the prior act must be
sufficiently similar to make the former relevant. After discussing at length a case in which
there was little similarity between the two, defendant asserts, again, in
summary fashion, without further analysis, “Same [sic] was true in [defendant’s] trial.†Again, this is insufficient.
Next, defendant makes an
assertion that is belied by the record, i.e., that there was such a “paucity of
evidence . . . on the charged offenses [
these other acts was an abuse of discretion.
We disagree. There was more than
sufficient evidence to support the verdict.
Finally, defendant
asserts that introduction of this evidence put him in the unfair position of
having to defend against the prior incidents.
Of course, there’s not much for a defendant to do where, as here, he has
pled guilty in relation to the two prior convictions. Moreover, that “burden,†however onerous it
might be, has not persuaded this court or many others to conclude that Evidence
Code section1109 is unconstitutional.
Finally, defendant
criticizes the trial court for failing to give a cautionary instruction that
the jury may not consider evidence of these three incidents as proof of
defendant’s guilt. First, such an
instruction would completely undermine Evidence Code section 1109, which
specifically provides that such evidence may be so considered. Second, the jury was instructed that it
that defendant was disposed or inclined to commit domestic violence and was
likely to commit and did commit the charged offense if it decided that
defendant committed the prior acts. The
jury was also cautioned that concluding that defendant committed the other acts
was only one factor to be considered along with all the other evidence and was
not sufficient, by itself, to prove defendant’s guilt. Defendant cites no authority holding that any
further cautionary instruction should have been given.
3.
Failure to Dismiss Defendant’s
Strike Priors
Defendant’s criminal history
began when he was 19 and includes, besides the misdemeanor
mentioned, theft, drug possession, evading, battery, driving under the
influence, robbery, shooting at an inhabited dwelling and assaults. His probation had been revoked in the past
and he was on parole when he committed this offense.
The trial court denied
defendant’s request to dismiss both or one of his strike priors citing his use
of a weapon on the victim, which resulted in stitches and a wound to her head,
“serious injur[ies, . . . that c]ould have been much more
serious[,]†and his history of crimes, especially crimes of violence. Defendant asserts that the trial court’s
ruling was an abuse of discretion.
In asserting that the
trial court made a ruling that was so irrational or arbitrary that no
reasonable person could disagree with it (People
v. Carmony (2004) 33 Cal.4th 367, 376, 377), defendant misconstrues the
court’s words. After listening to both
defendant and the victim, the court said that it had compassion for both, but
it could not be guided solely by that compassion without consideration for the
community. Contrary to defendant’s
assertion, the trial court did not say that the law would not allow it to
effectuate justice for defendant and exercise compassion, just that those could
not be the only considerations the court relied on in making its decision. We reject defendant’s assertion that his age (37
at the time of sentencing) and the victim’s desire that he not spend 29 years
to life in prison, compel a conclusion that the court’s ruling was so arbitrary
and capricious that no reasonable person could disagree with it.
Disposition
The trial court is
directed to amend the first page of the Abstract of Judgment to show that
defendant received a term of 25 years to life for violating section 273.5,
subdivision (a), and not life, as the abstract currently states. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We concur:
KING
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2]
| Description | A jury convicted defendant, Emanuel McFadden, of inflicting corporal injury on a cohabitant (Pen. Code, § section 273.5, subd. (a)).[1] In bifurcated proceedings, the trial court found true allegations that defendant had suffered two strike priors (§ 667, subds. (b)-(i)) and six prior convictions for which he served prison terms (§ 667.5, subd. (b)). He was sentenced to prison for 25 years to life plus four years and appeals, claiming the trial court should have granted his requests for substitution of counsel, evidence of prior acts of domestic violence should have been excluded and his request to dismiss one or both of his strike priors should have been granted. We reject his contentions and affirm, while directing the trial court to correct an error in the abstract of judgment. |
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