P. v. Pulley
Filed 1/28/13 P. v. Pulley CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CURTIS PULLEY,
Defendant and Appellant.
B239565
(Los Angeles
County
Super. Ct.
No. SA078896)
APPEAL from
a judgment of the Superior Court
of
County.
Rand S. Rubin, Judge.
Affirmed.
James
Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
>
A jury convicted defendant Curtis G.
Pulley of receiving stolen property (Pen. Code, § 496, subd. (a)).
proceeding, the jury found that defendant had one prior conviction within
the meaning of section 667.5, subdivision (b).
The trial court sentenced defendant to a total state prison term of four
years, to be served in the county jail (see § 1170, subd. (h)). The sentence consisted of the high term of
three years plus a one-year consecutive term for the prison prior under section
667.5, subdivision (b).
Defendant
appeals on the grounds that: (1) the trial court erred in denying his two
FACTS
Prosecution Evidence
On October
3, 2011, at approximately 1:00 p.m., Kestrin Pantera, an actress, kept an
appointment with her agent. She parked her car on Santa Monica Boulevard near
Prosser Avenue in Los Angeles. Pantera
left a briefcase containing a laptop computer and an iPad in a purple case on
the front passenger seat. She hid them
by covering them with jackets. Pantera
was not sure if the car doors were locked when she left the car. As she explained at trial, “When you push
[the lock] down, sometimes it goes down but it’s not actually down so it can appear
to be locked but it’s not.â€
Pantera
spent approximately 15 minutes inside the agency. She then returned to her car and began
driving away. She checked the items on
the passenger seat and discovered that the jackets were there but the briefcase
and iPad were not. Pantera felt
“[t]errified, panicked . . . .†because so much personal information was on the
laptop. The iPad belonged to Pantera’s
father, who had left it at her home the previous evening, and she had intended
to mail it to him.
She turned
around and returned to the area where she had been parked to see if someone had
the property. She asked the security
person in her agent’s building if they had a security camera, but there was
none. She called her husband, Jonathan
Grubb. Because she could not get through
to the police, she drove to the West Los Angeles police station where Grubb
met her. Pantera and Grubb then filed a
police report.
Grubb
called Pantera’s father and obtained his password to log into the “Find My
iPad†website. The site allowed the
user to input a code from another computer and locate the iPad in case it was
lost or stolen. The locate
feature displayed a map with a dot showing the missing iPad’s location. Grubb logged onto the website and saw an
indication that the iPad was located in the area of Santa Monica Boulevard and
Prosser Avenue. Grubb called the police,
who met him at a motel at that spot, The Little Inn. The site showed the iPad at that location,
but it did not indicate specifically which room the iPad was in. Pantera arrived, and she and Grubb waited
while the police “looked around the motel and talked to people.†They remained at the motel for a period of
time, but nothing was found.
Grubb also
used the message feature of the Find My iPad website to post a message on the
stolen iPad’s screen. The message read: “Return this iPad for $500 cash reward,
no questions asked,†followed by Grubb’s cell phone number.
Pantera
continued to monitor the dot on the Find My iPad application. On October 4, 2011, at approximately 10:00
a.m., she saw that the dot was moving along Santa Monica Boulevard. She called Grubb and the police, and she and
a friend got in Pantera’s car and began chasing the dot. At about 11:30 a.m. that same day, Grubb
received a telephone call from a man identifying himself as Curtis. Curtis said he had the iPad and
computer. He complained that he was
“already in this†for $8,000, and would return the items in exchange for
$9,500. Curtis also indicated that he
would like to have Grubb’s credit card information so that he could buy some
cell phones to donate to The Homeless Alliance.
Grubb said that he had cancelled his credit cards and would not provide
any credit card information. Grubb again
offered $500, but Curtis said that was not enough. They eventually settled on $8,500 in cash.
Grubb and
Curtis agreed to meet at around 1:00 p.m. at the Santa Monica Pier near the
chess players. Curtis said he would
bring the iPad, but he would hide the computer.
After he got the money, he would tell Grubb where to find it. During this telephone conversation, Grubb
used the Find My iPad application to locate the iPad. He saw that it was at a location near
Westwood and Santa Monica Boulevards.
Grubb noted that there was a T-Mobile store at that location and
telephoned the store. Grubb asked if
someone had just used their phone. The
T-Mobile employee answered in the affirmative and described the person as an
African-American man, perhaps in his 60’s.
He was wearing a work uniform and carrying a bag. Grubb gave this description to Pantera.
At
approximately 12:00 p.m., Pantera caught up with the dot while following a
bus. She drove behind the bus to the
Viceroy Hotel near the beach. She saw
defendant, who matched Grubb’s description, get off the bus. Pantera followed defendant in her car as he
walked to the beach. He was not in a
wheelchair. She saw him go into a public
bathroom on the beach. Pantera parked in
a parking lot located at a distance of 30 to 60 feet from the bathroom.
Detective Lynet Popper was the lead
detective assigned to investigate Ms. Pantera’s stolen property report. Detective Popper arrived at the beach
between noon and 12:30 p.m. Pantera told
her she had seen the suspect enter the bathroom on the beach.
Detectives
Popper, Curtis, and Smith waited approximately one minute before the suspect
came out of the bathroom. When defendant
emerged, he was carrying a backpack in his hand. An iPad with a purple cover was protruding
from the backpack. Pantera identified
the iPad as the one stolen from her car.
Defendant was arrested.
Detective
Popper later went to The Little Inn, where Martiza Chavarria, the motel
manager, took her to the room that had been rented by defendant. On the bed there was a briefcase matching the
description of the one taken from Pantera’s car. The briefcase contained some papers and a
handicapped placard with defendant’s name on it. It did not contain a computer. Chavarria testified that on October 2 and 3,
defendant rented several rooms at the motel.
Motel records showed that he rented one room on October 2, 2011,
and then three rooms on October 3.
Pantera
recovered the iPad and her briefcase, but her laptop was never returned to her.
Defense Evidence
Defendant
testified on his own behalf. He admitted
that he had a 2006 felony conviction for unlawful driving or taking of a
vehicle; a 1993 felony conviction for writing checks with insufficient funds; a
1987 felony conviction for bank larceny, a federal offense; and a 1987 felony
conviction for theft by forged check or credit card.
On October
3, 2011, defendant was staying at The Little Inn. He had rented several rooms because he was
expecting to have a press conference, and people were coming from different
parts of the country.
Across the
street from The Little Inn on Santa Monica Boulevard was a café where defendant
had discussed holding his press conference with the café manager on
October 3, 2011. When defendant
left the café, he saw a yellow Mercedes 450SL parked outside it. Defendant, a Lakers fan, had been trying to
purchase a car like that because it was yellow.
He took some photographs of the car with his iPhone.
A young
woman who was speaking on a cell phone approached the Mercedes, put a bag down
on the curb, and opened the car door.
She got in the car and drove off while defendant was “photographing this
whole situation.†Defendant waved at her
in an attempt to tell her she had left her bag on the curb. At that point, defendant saw a homeless man
named John pick up the woman’s bag and a briefcase. John showed defendant the bag and a computer
he had found inside. Defendant saw that
it was an iPad. The briefcase was empty
except for some pieces of paper.
Defendant gave John $100 for the iPad and the briefcase. Defendant had the woman’s license plate
number and he intended to locate her through DMV records and return her
property.
Because he
was late for a meeting in Beverly Hills, defendant put the iPad and briefcase
in his motel room. After the meeting,
defendant went to Newport Beach to stay the night with a friend.
When defendant returned to The
Little Inn on the following morning, he saw that the iPad had been activated,
and it showed a message on the screen offering a reward. Later that morning, defendant went to a
T-Mobile store in Beverly Hills to purchase cell phones for his children. He asked an employee if he could make a call
from one of the cell phones to check its sound quality. He gave the employee the number of the person
offering the reward, and the clerk dialed the number for him. He had “close to†$3,800 in his pocket at the
time.
An
older-sounding man answered the phone.
The man said he was on a breathing machine and could not talk very
well. He identified himself as Gary or
Harry “or some ‘G’ name.†Defendant said
he had seen the reward about the iPad and was willing to mail the iPad to
him. The man suggested they meet in
person. Defendant said it was not
necessary to give him a reward, but the man could make a donation to a
nonprofit organization defendant had founded called Homeless Coalition. Defendant denied telling the person that he
wanted $9,500. Defendant and the man
agreed to meet at 12:30 p.m. at “Muscle Beach where the chess setup is,†and
defendant caught a bus to Santa Monica.
Defendant
arranged for a friend named Johnny to videotape defendant returning the iPad to
the man on the phone. Defendant believed
he could use the video as a goodwill exhibit in aid of his fund-raising. Defendant went into the restroom to change
his clothes and take his medicine. When
he came out, there were 15 to 20 police officers outside with their guns drawn,
and he was arrested. One officer pulled
defendant’s backpack off his shoulder.
An officer also took “a lot of . . . money and stuff†out of defendant’s
pocket.
DISCUSSION
I. Marsden
Motions
A. Defendant’s Arguments
Defendant contends that at the time
of his Marsden requests, it
was readily apparent there had been a complete breakdown of the attorney/client
relationship between him and his public defender. It was also readily apparent that defendant’s
trial counsel and his preliminary hearing counsel had not conducted reasonable
investigation into his case and were not providing effective assistance of
counsel. The trial court therefore erred
in denying his Marsden motions.
B. Relevant Authority
the assistance of counsel entitles him to substitute appointed counsel “‘“‘if
the record clearly shows that the first appointed attorney is not providing
adequate representation [citation] or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation is
likely to result.â€â€™â€™â€ (
728.)
We apply the “deferential abuse of
discretion standard†when reviewing the denial of a motion to substitute
counsel. (People v. Jones (2003) 29 Cal.4th 1229, 1245.) “‘Denial of the motion is not an abuse of
discretion unless the defendant has shown that a failure to replace the appointed
attorney would “substantially impair†the defendant’s right to assistance of
counsel.’ [Citations.]†(People
v. Hart (1999) 20 Cal.4th 546, 603.)
C. First Marsden Motion (January 25, 2012)
Proceedings
At a
pretrial conference on December 5, 2011, deputy public defender Alba Marrero
took over defendant’s case. At the next
two pretrial conferences (December 19, 2011, and January 4, 2012, deputy public
defender Florentina Demuth appeared for Ms. Marrero. On January 4 and January 6, 2012, defendant
refused to appear in court. On January
11, 2012, defendant appeared, represented by Ms. Marrero. He refused to waive time, but the trial court
granted the defense a continuance over defendant’s objection.
On January
20, 2012, the case was called for a readiness hearing. Ms. Marrero informed the court that defendant
wanted her to do a Pitchess
time. The trial court did not find good
cause for a continuance, and the last day for trial remained January 31,
2012. Ms. Marrero also informed the
court that defendant wished her to file a motion under Code of Civil Procedure
section 170.6. The trial court stated it
did not have the motion before it and would not rule. Both sides announced ready, and trial was set
for January 25, 2012.
At the
beginning of the proceedings on January 25, 2012, defendant addressed the
court. Defendant stated, “I conferred
with the attorney, and one of the first things I told her was that I was not
guilty of anything other than trying to return a computer to—that was lost to
some person that I called on the phone and the consequence that I got
arrested. There was evidence in my pack
when I came out of the restaurant and seen the computer stuff sitting on the
street side. I took a picture of the car
that left it there— . . . to prove my innocence. This attorney here will not
file any kind of motion in my behalf to get this information. The trial court asked if defendant was making
a Marsden motion, and defendant
replied, “I’m trying to fire this attorney.â€
A
trial court asked defendant to state his complaints about his attorney. Defendant first complained that Ms. Marrero
had not filed the motion under Code of Civil Procedure section 170.6, which was
to be based on the fact that the trial judge looked just like the man who had
molested defendant when he was 12. The
trial court informed defendant that his attorney had not filed that motion
because the court had indicated to her that it would be untimely.
Defendant
next complained that he had asked Ms. Marrero to file a Pitchess motion, and she had not.
The trial court pointed out that the witnesses against defendant were
civilians, and this was perhaps why Ms. Marrero had not filed such a motion.
Defendant
told the court that Ms. Marrero would not go to check on his backpack that had
contained his credentials, credit cards, and perhaps the $3,700 he had in his
possession when he was arrested. He also
implied that the backpack contained the license number of the car driven by the
person who left the property. He had
written down the license number, and he wished to go to the DMV and get
information to enable him to contact that person. Counsel had refused to contact a judge, Judge
Filer, who knew about defendant’s homeless program in which millionaires such
as Bill Gates and Warren Buffett had placed $365 million. Counsel had also refused to call defendant’s
witness to court or even ask him the name of his witness.
In response
to defendant’s allegations, Ms. Marrero stated:
“I met Mr. Pulley for the first time on the 5th of December in this
court. . . . As soon as I met him he
wanted a Pitchess motion. . . . And at that time I asked [
all these motions but he would have to waive time. He was adamant that he was not guilty and
that he wasn’t going to waive any time.
I explained to him what my trial schedule was. He refused to talk to me. . . . In order for me to file a
the facts that I am filing. He would
never discuss what the facts were with me.
Counsel then told the court about two successive visits to defendant on
her lunch hour during the time he refused to come to court. Defendant never did give her any facts for a
she had no facts, she could not file it.
The trial court then informed her that a Pitchess motion was not relevant because of the civilian witnesses.
Ms. Marrero
stated she had then filed a section 995 motion as a means of challenging
whether defendant was held without any probable cause. The motion was denied. Counsel was not able to talk to defendant
because he was angry, and he would not allow her “to get to the bottom of what
he [was] trying to say.†She had a long
telephone conversation with defendant in which she explained that she knew
Judge Filer, but it would not be relevant to follow up on the information
defendant had given her as the reason to contact Judge Filer.
Ms. Marrero
stated that defendant had told her for the first time (no date was specified,
although she implied it occurred recently) that he had had $3,700 in his
pocket. She had a prepared a declaration and was willing to ask the court to
sign an order for her to inspect defendant’s property, but defendant would not
waive time, and a certain amount of time was necessary to coordinate with the
property person and for that person to act.
Defendant would not waive time for her to prepare any of the motions that
he believed were legitimate.
The trial
court suggested that defense counsel
subpoena the property person to come to trial with the evidence, and defense
counsel agreed. Counsel concluded, “So
I’ve tried all along to work with Mr. Pulley, but without him waiving time, I’m
not able to file the necessary motions that he has, and now I’m stuck in this
trial without doing all of the investigation that I needed to do because he
won’t waive time.
When the
trial court asked if defendant wanted “the last word,†defendant stated, “She
talk a lot, but she never told you that I asked her from the very beginning
that I didn’t want to be in this courtroom.â€
The trial court reiterated that an affidavit for that purpose had to be
filed on December 5, 2011, when the case was sent to the court for all
purposes. This issue was discussed for
four more pages of transcript, with defendant insisting that the sequence of
events was not as the trial court had gleaned from reviewing the
transcripts. Finally, the trial court
stated, “I’ve heard the Marsden
motion. I believe that this attorney is
doing her best within the time constraints.
She’s familiar with this case.
She’s willing to do more, but Mr. Pulley doesn’t want to waive time. I find that any deterioration in this
relationship is occasioned by Mr. Pulley’s recalcitrant and defiant
attitude. There’s no reason why this
attorney cannot adequately represent this defendant for trial if he allows her
to.
2.
First Marsden Motion Properly Denied
We conclude that the trial court did not abuse
its discretion and that defendant’s right to assistance of counsel was not
substantially impaired by the trial court’s refusal to replace Ms. Marrero. (See People
v. Hart, supra, 20 Cal.4th at p.
603.) “It is the very nature of a
whether counsel has been providing competent representation.†(People
v. Smith (1993) 6 Cal.4th 684, 694-695.)
We agree with the trial court that Ms. Marrero was competently
representing defendant.
It is true that Ms. Marrero did not
file an affidavit of prejudice under Code of Civil Procedure section 170.6 on
the first day Judge Rubin called defendant’s case for a pretrial conference. The record shows that defendant was
represented by Matthew Huey in the prior proceeding when the matter was
assigned to Judge Rubin. At the first
hearing in Judge Rubin’s court on December 5, 2011, the minute order shows only
that defendant moved for release on his own recognizance or a bail
reduction. Defendant himself said that
he first told Ms. Marrero of his desire to disqualify Judge Rubin on January
18, 2012. Assuming he did so, his
request was untimely. Moreover,
defendant did not claim that Judge Rubin was prejudiced against him, but
rather, that defendant disliked Judge Rubin because he purportedly looked like
the person who had molested him when he was 12.
As for the Pitchess motion, the trial court was entitled to credit Ms.
Marrero’s assertions that defendant never gave her any grounds for filing a
v. Clark (2011) 52 Cal.4th 856, 912.)
The facts of the case bear out the trial court’s assessment that there
was no basis for filing a Pitchess
motion for personnel records of any of the arresting officers, since the
principal witnesses against defendant were civilians. Counsel is not required to make idle or
frivolous motions. (People v. Taylor (1984) 162 Cal.App.3d 720, 726.) Ms. Marrero filed a section 995 motion in any
event, to ascertain whether defendant was arrested with sufficient probable
cause.
With respect to defendant’s
backpack, it appears defendant was not very clear or consistent in relating to
his attorney what he claimed was in that backpack and its alleged relevance to
his case. Defendant was angry and unable
to clearly communicate what he wanted to say to Ms. Marrero. According to Ms. Marrero, defendant did not
at first tell her that there was a sum of $3,700 in his pocket, which, if true,
was a fact she believed would be useful at trial. Although defendant told the court just prior
to the Marsden hearing on January 25,
2012, that there was evidence in his pack to prove his innocence, it is not
clear that he ever told his counsel that there was exculpatory evidence in his
pack. Defendant’s refusal to waive time
before trial was an obstacle to obtaining the property by means of a
motion. Ms. Marrero’s long experience
told her that it would take more time than was available to her before trial to
obtain the order, coordinate with the property person, and obtain the
property. Furthermore, the last time
they had appeared in court before January 20, 2012, which would have been on
January 11, 2012, defendant told Ms. Marrero that he was willing to take a
time-served plea bargain that had apparently been offered him. Ms. Marrero had tried to set a date
for accepting the bargain but had found that the prosecution was offering only
a two-year deal at that juncture. On the
next court date, January 20, 2012, defendant refused the two-year offer.
We believe the record shows that Ms.
Marrero was, as she expressed it, trying “all along to work with
[defendant].†The court was entitled to
believe Ms. Marrero’s assertion was credible.
(People v. Clark,
times by telephone and in person. She
had listened to defendant and made an effort to ascertain there was sufficient
evidence to support the charges by filing the section 995 motion, since
defendant refused to discuss the facts with her. She also filed a
As for the
deterioration in their relationship, we agree with the trial court that, “any
deterioration in [the attorney-client] relationship [had been] occasioned by
[defendant’s] recalcitrant and defiant attitude,†and there was “no reason why
[Marrero
could not] adequately represent [defendant] for trial if he
allow[ed] her to†do so. The record
establishes that defendant was a very difficult client, and a conflict between
defendant and counsel does not constitute an irreconcilable conflict when the
defendant has failed to make a good faith effort to work out any
disagreements. (See People v. Smith, supra, 6
Cal.4th at p. 696; People v. Barnett
(1998) 17 Cal.4th 1044, 1086.) Unless
there is a complete breakdown in the attorney-client relationship, disputes
over tactics and a defendant’s lack of trust in or disregard for his attorney
are not sufficient grounds for relieving counsel. (People
v. Memro (1995) 11 Cal.4th 786, 857, disapproved on another point in
610, 639; People v. Silva (1988) 45
Cal.3d 604, 622.) The court also will
not relieve defense counsel if the defendant manufactures a conflict to force
substitution of counsel. (
In addition, defendant had a record
of being dissatisfied with appointed counsel.
He was represented by deputy public defender Matthew Huey at his
preliminary hearing on October 31, 2011, and his arraignment on November 15,
2011. Prior to his preliminary hearing,
defendant filed a Marsden motion,
which was denied, and he then asked permission to represent himself, which was
denied. “‘“[I]f 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.â€â€™ [Citation.]†(
v. Smith (2003) 30 Cal.4th 581, 606 [“A defendant may not effectively veto
an appointment of counsel by claiming a lack of trust in, or inability to get
along with, the appointed attorney.â€].)
To the extent that defendant’s version of his communications with counsel differ from
Ms. Marrero’s, the trial court in its discretion may accept Ms. Marrero’s
version. If an assessment of credibility
is the determining factor, the court has discretion to believe counsel’s
version of events proffered in a Marsden
hearing. (See, e.g.,
We conclude
there was no abuse of discretion in denying defendant’s first
Proceedings
On the fourth
day of trial, prior to the testimony of the prosecution’s last witness,
Pantera, defendant asked to address the court.
He stated, “Once again, your Honor, I would just like to put in a
this particular stage.†He said that the
“work have been done, so we say, and it’s just my testimony left and closing
arguments basically, you know. I just
like to represent myself at this point on.â€
The trial court asked if defendant was making a Marsden motion or a request to represent himself. Defendant replied, “Well, relieve my attorney
from her duties. I don’t feel like she
is working in my best interests.†The
trial court again asked for clarification as to whether defendant wanted
another attorney appointed. Defendant
replied, “I want to represent yourself.â€
The trial court stated, “That motion is going to be respectfully
denied. Number 1, we are in the middle
of trial. Number 2, I see the way you’ve
acted throughout this trial, and I don’t want to turn this into a circus. I’ve seen your attorney representing you and
I think she’s doing the representation to the best of her ability, so your
motion to take over the case—last time I asked you about pro. per. you said you
would need time to prepare.†Defendant
said, “I don’t need no time now.†The
court stated that the request was untimely and was denied.
At that
point, defendant said, “Well, what about having another attorney to represent
me? She couldn’t even get a question
asked to either one of the witnesses on the witness stand yesterday. She had 25 denials to ask the question.†Defendant also stated that his attorney
refused to even ask the question he wanted to ask. The trial court asked the prosecutor to step
out of the courtroom.
At the
ensuing Marsden hearing, the trial
court asked defendant what was new and different since the last
about witness testimony, she’s telling me, don’t say anything in front of the
jury, don’t talk to me in front of the jury.
I can’t ask her no questions about what I want to ask this person
here.†He also complained that, “nobody
sent . . . a motion out to subpoena my property to be in this courtroom.†He also believed that the jury could see his
attorney was inexperienced. He added
that Ms. Marrero refused to have the investigator go out and look at his
evidence proving his innocence.
Ms. Marrero
responded that she had a problem with defendant’s lack of respect in that he
screamed everything at her and was always “very, very angry.†She had never had a clear conversation with
defendant about the facts of the case.
Defendant was not forthcoming and was very selective as to what facts he
related to her. He also heard what he
chose to hear and then accused the court or herself of saying things they did
not say. She explained that, as defense
counsel, there were things she chose not to ask because these things would help
the prosecutor’s case with respect to the element of knowledge. For example, defendant wanted to testify
about his conversation with the owner of the iPad even though counsel believed
it had not been proved that defendant had that conversation. She believed that defendant would make the
case for the People if he testified. She
did not believe the People had done a good job and that there was room for
reasonable doubt. With respect to
defendant’s opinion that she was inexperienced, she pointed out that she had
been a public defender for 21 years.
Finally, she had no evidence that a video existed of the lady driving
away and leaving her computer on the sidewalk as defendant claimed, and
defendant had never told her where the video was located. She believed that the fact that there was no
evidence of the location of his backpack helped to create reasonable doubt with
the jury.
The trial
court found that there was no breakdown in the relationship between defendant
and Ms. Marrero that would make it impossible for her to represent
defendant. The court told defendant that
Ms. Marrero “can properly represent you if you allow her.†The trial court stated that Ms. Marrero was
“doing the best she can, being rushed to trial without a time waiver.â€
Second Marsden
We agree with the trial court. Ms. Marrero’s relationship with defendant had
not changed since the first Marsden
motion. Defendant’s complaints about Ms.
Marrero advising him not to testify and her failure to ask certain questions he
wished her to ask constituted mere differences of opinion as to tactics. Disagreements over strategy are insufficient to
warrant a substitution of counsel under Marsden. (People
v. Welch, supra, 20 Cal.4th at
pp. 728–729 [“A defendant does not have the right
to present a defense of his own choosing, but merely the right to an
adequate and competent defense. [Citation.]
Tactical disagreements between the defendant and his attorney do not by
themselves constitute an ‘irreconcilable conflict.’â€]; People v. Lucky (1988) 45 Cal.3d 259, 281–282 [“There is no constitutional right to an
attorney who would conduct the defense of the case in accord with the whims of
an indigent defendant. [Citations.] Nor does a disagreement between defendant and
appointed counsel concerning trial tactics necessarily compel the appointment
of another attorney.â€].)
There was
no breakdown between Ms. Marrero and defendant such that it was impossible to
defend him, and she was even optimistic about creating reasonable doubt with
the jury if defendant did not testify.
Ms. Marrero was an experienced defense attorney and the record shows
that she continued to represent defendant in a professional manner despite the
abuse to which he subjected her. Far
from making a good faith effort to work out his disagreements with counsel, he
screamed his requests (or demands) at her, thus creating unnecessary
conflict. (People v. Smith, supra, 6
Cal.4th at pp. 696-697.) Defendant has
not shown that Ms. Marrero’s performance detrimentally affected his trial. Therefore, his right to counsel was not
substantially impaired. (
Moreover,
defendant’s courtroom behavior and his attitude and manner of speaking to the
trial court are evidence that, as we have noted, defendant was a difficult
client. After he was found guilty, and
during jury deliberations on the prior prison term allegation, defendant
claimed he became ill in the lockup. The
trial court stated for the record, “He was back there by himself, he was on the
floor, and of course when someone tells the sheriffs they’re ill, they have no
choice but to call the ambulance. The
ambulance has come and they have taken Mr. Pulley away. I do want to make a record, because I think
this is just getting to be a joke. There
were other court days that Mr. Pulley refused to come to court, claiming he was
ill. In the courtroom he did, I believe,
purposely fall out of his wheelchair to avoid going forward on the first day of
trial. A few days ago he claimed he was
sick from an odor in the van that transported nine people. The other eight people did not claim to be
ill. But at some point after they
brought another van and were ready to take Mr. Pulley away, he realized he
didn’t want to go to the doctor and refused, made them bring another van for
him and refused. This morning, according
to counsel, his own counsel, he was very abusive and used some terminology that
is not appropriate to use with counsel, and even in the court he had a couple
of outbursts . . . . My impression from
what I have seen and his record is he’s some kind of a con man or like a child
that just wants to get his way, and this is his manipulation of not being here
for the verdict, and that is the verdict on whether there is a one-year prior
or not.†Later the court added, “I
watched him put his hands in his mouth trying to make himself throw up through
the entire session. So if he did vomit
back there—and I don’t know if he did or he didn’t—I think he forced himself
just like he was trying to do the first day of jury selection.â€
Finally,
Ms. Marrero had made her best efforts to locate defendant’s backpack, as she
related to the trial court on January 26, 2012.
She had submitted an order to the trial court the previous day, which
the trial court had signed, that directed the sheriff’s department to “bring
all personal property of the defendant . . . to court for his next court date
of January 30, 2012.†On January 26,
2012, Ms. Marrero advised the trial court that she had spoken to the property
person who usually comes into court, a Mr. Hernandez, and he said that that
defendant’s clothes were not in his custody.
He had only some medical scrubs, since defendant went to booking from
the hospital. Mr. Hernandez told Ms.
Marrero to contact Detective Popper to find the location of defendant’s
property. Ms. Marrero also found out
that the West Los Angeles police station did not have a “holding cell,†and
everything that is deemed excess property is sent to Van Nuys. A person in Van Nuys told her that the
property had been destroyed. The
supervisor told her that she would need an order and would have to talk to the
detective to see where the clothes were.
They did not know. Ms. Marrero
then enlisted the aid of the prosecutor, who told the trial court that he contacted
Detective Popper, who informed him that the police department did not have
defendant’s personal property. She
contacted the medical ward at county hospital, and it was not there
either. The last person who had the
property to her knowledge was Detective Curtis, who was on vacation. The trial court stated that he was “ordering
[Detective Popper] to get in touch with [Detective Curtis],†and the prosecutor
said he would “tell her that, and I will relay the response to defense as soon
as I get it.â€
On Monday,
January 30, 2012, the prosecutor told the court that Detective Popper said she
had been unable to reach Detective Curtis and was going to contact the
hospital, presumably for the second time.
On January 31, 2012, Ms. Marrero told the court that she believed
defendant’s property was “nowhere to be found.â€
The trial court stated, “We don’t know what happened to it after his
arrest. It’s not in the police
possession.†Thus, Ms. Marrero appears
to have done all that she could in order to find defendant’s backpack.
As noted,
defendant was not content with the attorney who preceded Ms. Marrero. He filed a Marsden motion against the attorney and followed it with a
unhappy with any attorney. As the trial
court later indicated, defendant seemed bent on delaying the proceedings in any
manner possible once trial became imminent.
We conclude there was no abuse of discretion or violation of defendant’s
Sixth Amendment right to effective representation in the denial of defendant’s
second Marsden motion.
Finally, we
conclude that any error in denying defendant’s Marsden motions was harmless beyond a reasonable doubt. (See People
v. Reed (2010) 183 Cal.App.4th 1137, 1148.)
Defendant’s insistence on testifying and the concomitant necessity of
revealing his history of theft offenses lead to the conclusion that any error
in denying the Marsden motions was
not prejudicial. Defendant suggests that
an analysis of the prejudice he may have suffered because of the failure to
find the backpack is precluded because he is not able to show the evidence it
contained. He states that this court
should conditionally reverse his judgment to enable the trial court to conduct
an evidentiary hearing to either examine the backpack or, “if the evidence was
either legitimately unavailable or did not have the exculpatory value that
appellant represented, he would not receive an undeserved windfall.†We agree with respondent that the existing
record is sufficient to make this determination. The record shows that Ms. Marrero, the
prosecutor, and the police made their best efforts to locate the backpack, but
their efforts were unsuccessful.
Therefore, defendant’s suggested remedy is unnecessary.
II. Faretta
Motions
A. Defendant’s Arguments
Defendant
contends the trial court abused its discretion by denying his requests to
represent himself on the day of trial, but prior to voir dire, and when he
renewed his request following the first day of testimony.
A defendant has
the right to represent himself if he voluntarily and intelligently chooses to
do so. (Faretta, supra, 422 U.S.
at p. 835.) He or she must opt to do so,
however, “within a reasonable time prior to the commencement of trial.†(People
v. Windham (1977) 19 Cal.3d 121, 127-128.)
“The ‘reasonable time’ requirement is intended to prevent the defendant
from misusing the motion to unjustifiably delay trial or obstruct the orderly
administration of justice.†(
852.)
“‘When a motion
for self-representation is not made in a timely fashion prior to trial,
self-representation no longer is a matter of right but is subject to the trial
court’s discretion.’ [Citation.] In exercising this discretion, the trial
court should consider factors such as ‘“the quality of counsel’s representation
of the defendant, the defendant’s prior proclivity to substitute counsel, the
reasons for the request, the length and stage of the proceedings, and the
disruption or delay which might reasonably be expected to follow the granting
of such a motion.’†[Citations.]†(People
v. Jenkins (2000) 22 Cal.4th 900, 959, citing factors set forth in
factors in making its ruling. (
1197, 1206.) A trial court “rarely should grant such a
motion on the day set for trial.†(
1268, 1277.)
A defendant may
not seek “to unnecessarily delay trial under the pretense of a
v. Moore (1988) 47 Cal.3d 63, 79.)
“‘Trial courts are not required to engage in game playing with cunning
defendants who would present Hobson’s choices.’
[Faretta] held generally that
a defendant may represent himself. It
did not establish a game in which defendant can engage in a series of
machinations, with one misstep by the court resulting in reversal of an
otherwise fair trial.†(
115.)
1.
Proceedings Below
After the
trial court denied defendant’s Marsden
motion on January 25, 2012, defendant asked to be released on his own
recognizance, and the trial court told him that the issue had been dealt with
and he had a $30,000 bond. Just prior to
the prospective jurors entering the courtroom, defendant said to the trial
court, “Being that I don’t want her to represent me and I don’t feel comfortable
with her representing me and she and I not go—seem like I being rushed to judgment
here, I don’t have the evidence to prove my innocence, I don’t have the name of
my witnesses that can prove my innocence and there have been no investigation
done on that and I still haven’t seen my property where I can get telephone
numbers and names and try to make bail.
I haven’t did anything since I been down so I’m asking to go pro. per.
on this matter.â€
The trial court
asked defendant if he was ready to proceed.
Defendant said he would not be ready that day. He would have to waive time to get some
things done. The trial court stated,
“Well, the problem is that this is not a game and you wouldn’t waive time and I
have a jury outside and we’re ready to go, and I actually had to make a good
cause finding for counsel to get ready, to get this to go, so we’re going
forward.†Defendant said that counsel
was not ready. At that point, Ms.
Marrero interjected to put on the record that defendant had fallen out of his
wheelchair, but he got back in. Counsel
then stated, “ . . . I think that it’s true what he’s saying. I mean, because he didn’t waive time, I was
not able to check out his property, I think that if he wants to go pro. per.,
that is his choice, and I think that what we can do is bring his property here,
let him inspect his property, let him go pro. per.†Counsel said that she and defendant had not
really bonded because he would not waive time to do the motions he requested. She stated, “And I think that he has enough
reasons to be insecure about going forward today because of the fact that . . .
.†The trial court interrupted to say
that if this were the case, defendant would not have been in such a hurry and
would have waived time. There were 50
jurors outside and they were ready to start the trial. The court told Ms. Marrero to subpoena the
property in for trial. Defendant
interrupted to say, “What about my evidence, your Honor? The videotape that I made of the car leaving
the bag on the sidewalk?†The trial
court stated, “Okay. Your request for
pro. per. at this point in time, when the jury’s outside, you refused to waive
time, is untimely. The request to be
pro. per. is denied.†Defendant began to
argue with the court and to complain about being in jail and his lack of proper
medical treatment. Ms. Marrero said to
the trial court, “I just think that the court should consider his pro. per.
status. He’s right, we have not had . .
. .†The court told counsel that it had
already dealt with the Marsden motion
and stated, “I know you want to relitigate it, try and create some more issues,
but I dealt with the Marsden. You talked about what you’ve done, talked
about being ready based on the time frame you have. I have a jury outside. The case is going to go.â€
2.
First Faretta Motion Properly
Denied
Defendant’s
request for self-representation, which he made at the very instant his trial
was set to begin, was properly denied as untimely. (People
v. Marshall (1996) 13 Cal.4th 799, 827.)
The California Supreme Court has held that, in the face of an untimely
request, the grant of propria persona status may be conditioned on the
defendant’s ability to proceed with the trial without a continuance. (People
v. Jenkins, supra, 22 Cal.4th at
p. 1039.) The court has also “held on
numerous occasions that Faretta motions
made on the eve of trial are untimely.â€
(People v. Lynch,
In this case especially, where defendant was adamant for weeks that he
would not waive time, there was no abuse of discretion in denying his request
as untimely while the jurors were waiting in the corridor.
Moreover,
defendant did not ask to represent himself until after his Marsden motion was denied and the parties began discussing
preliminary matters prior to the entrance of the jury. Faced with the inevitability that his trial
was about to begin, defendant, who had refused to waive time for his attorney
to investigate, suddenly wished to delay the beginning of trial and represent
himself. “[B]y juggling his
interspersed with Marsden motions,â€
the trial court could have reasonably concluded that he was “playing ‘the
trial. (People v. Williams (1990) 220 Cal.App.3d 1165, 1170.) The trial court presumably was aware of the
at the preliminary hearing, since it had ruled on defendant’s section 995
motion. The fact that Ms. Marrero seemed
to be in favor of allowing defendant to represent himself is testament to his
difficulty as a client. The record
contains no evidence that she represented defendant less than vigorously
despite defendant’s conduct.
In addition,
granting the Faretta on the day trial
was to begin would have resulted in disruption and delay, since defendant
acknowledged he was not ready to proceed.
Moreover, a defendant who begins to use delaying tactics, or is
otherwise offensive, may forfeit his right of self-representation. (Faretta,
supra, 422 U.S. at pp. 834-835, fn.
46; People v. Powers,
914-915.) Defendant had already shown
himself to be disrespectful to the court, telling the trial judge: “I still
hate this court. . . . I hate you.â€
A trial
court need not explicitly state on the record that it has considered the
various Windham factors if
substantial evidence in the record otherwise supports the inference that the
trial court had those factors in mind when it ruled. (People
v. Scott, supra, 91 Cal.App.4th
at p. 1206.) The trial court’s remarks
here provide substantial evidence that it had the appropriate factors in
mind. (People v. Bradford (2010) 187 Cal.App.4th 1345, 1354-1355.) We conclude the trial court did not err or
abuse its discretion in denying defendant’s first Faretta motion.
The second
intertwined with defendant’s second Marsden
motion, but even more so.
name="_ftnref5" title="">[5] A defendant’s Faretta request may be found equivocal when it is made immediately
after the court had rejected the defendant’s Marsden motion. (See, e.g.,
Faretta motion should have been granted
because he told the court unequivocally that he would not need any additional
time. The mere fact that defendant
asserted he would not need a continuance did not grant him “an absolute right
to represent himself without regard to the Windham
factors.†(People v. Bradford, supra,
187 Cal.App.4th at p. 1355.) The same
standard applies to this motion as to any Faretta
motion brought after the commencement of trial.
(Bradford, at p. 1355.)
Defendant
further contends it was readily apparent that counsel was not diligently trying
to secure the evidence he believed was crucial to his defense, despite her
assurances that she would, and the antagonism between defendant and counsel was
escalating, which constituted good cause.
We disagree. As we have discussed, Ms.
Marrero made several efforts to obtain defendant’s backpack. It was determined that it had been lost. Although defendant stated he would not need a
continuance, his taking over his defense would have caused a disruption in the
proceedings in any event. Defendant had
demonstrated a penchant for showing disrespect for the court and for staging
events he believed would elicit sympathy for him. The trial court was not unreasonable in its
concern that defendant would turn the trial into a circus. “The court faced with a motion for
self-representation should evaluate not only whether the defendant has stated
the motion clearly, but also the defendant’s conduct and other words.†(People
v. Marshall, supra, 15 Cal.4th at
p. 23.) A Faretta motion made for the purpose of delay or to frustrate the
orderly administration of justice may be denied. (Ibid.) The trial court did not err or abuse its
discretion in denying defendant’s Faretta
motion toward the end of the prosecution case.
Moreover, any
error in denying defendant’s Faretta
motions was harmless. Although a trial
court’s error in denying a timely motion to represent oneself is automatically
reversible (People v. Joseph (1983)
34 Cal.3d 936, 945-948), when the motion is untimely, we apply the harmless
error standard, i.e., whether it is reasonably probable that a result more
favorable to the defendant would have been reached in the absence of the
error. (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058;
Cal.App.4th 584, 594-595; People v.
835-836.)
We conclude
there would not have been a result more favorable to defendant had he
represented himself. “[A] defendant who
represents himself virtually never improves his situation or achieves a better
result than would trained counsel.†(
1040, 1051-1052, citing Faretta, 422
U.S. at p. 834.) The record shows that
defendant was represented by competent counsel.
During the Marsden hearings,
before the Faretta motions,
defendant’s attorney established that she had been diligent in representing
defendant within the time limits imposed and had considered and responded to
those requests made by defendant that she could understand and that she
believed had a reasonable basis.
Defendant, against counsel’s advice was determined to testify and tell
his convoluted story, which the jury clearly found incredible. Had he represented himself, his delaying
tactics and transparent histrionics would only have increased. It is inconceivable that he, representing
himself, would have achieved a more favorable result. Any interference with defendant’s right of
self-representation was not substantial and not prejudicial.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
name="_ftn1" title="">[1] All further references to statutes are
to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] People
v. Marsden (1970) 2 Cal.3d 118 (Marsden).
