P. v. Acosta

















Filed 12/10/12 P.
v. Acosta CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.



IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. JOHNNY ACOSTA, Defendant and Appellant.

E053382 (Super.Ct.No. FVI902489) OPINION

APPEAL from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County. John
M. Tomberlin, Judge. Affirmed.

Michelle Rogers, 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, Melissa Mandel and Meredith S. White, Deputy Attorneys
General, for Plaintiff and Respondent.

A jury convicted
defendant and appellant Johnny Acosta of first
degree murder (count 1—Pen. Code § 187, subd. (a)).href="#_ftn1" name="_ftnref1" title="">^[1] The jury additionally found
true allegations defendant personally used a deadly and dangerous weapon, a
hammer, in committing the count 1 offense; had incurred two prior strike
convictions; and two prior serious felony convictions. The court sentenced defendant to an aggregate
term of incarceration of 81 years to life.
On appeal, defendant contends the court erred in not instructing the
jury with CALCRIM No. 627 on its own motion, and in not holding a
constitutionally adequate Marsden hearing.href="#_ftn2" name="_ftnref2" title="">^[2] We affirm the judgment.

>FACTUAL AND PROCEDURAL
HISTORY

On
November 9,
2009, defendant went to the home of his
niece, Monica Steel, to visit her and her grandmother. Defendant, Steel, and Steel’s daughter then
left to visit Steel’s cousin Irenehref="#_ftn3" name="_ftnref3" title="">^[3] at her new home; defendant
drove. Steel testified that on the ride
over, defendant “couldn’t comprehend what [she] was saying.”

When
they arrived, Steel’s aunt and defendant’s sister, Debra Lucero; Irene; Irene’s
three daughters; and Joy Stankewitz, a family friend, were already there. The victim, a cable installer, was in the
family room installing cable.

Defendant
left the room with Lucero to go to the garage in order to smoke a
cigarette. Defendant was “fidgety and
bouncing around.” He was skipping,
jumping, and hitting the walls and garage door opener with his hands. Lucero asked defendant why he was behaving so
strangely and whether he was on drugs.
Defendant replied that he was on drugs; he said “it doesn’t stop talking
to me, the voices I’m hearing.”

Stankewitz
testified she followed defendant and Lucero into the garage shortly
thereafter. When she arrived, Lucero
told her defendant was on methamphetamine and acting agitated. She testified defendant’s eyes looked
“empty.” She remembered seeing a hammer
in the garage, on the ground, laid against the wall. Stankewitz went back into the house and into
another room.

After
approximately 10 minutes, defendant picked up something in the garage and
walked back into the family room. Steel
testified it looked like defendant was carrying a hammer. Defendant’s facial expression was “just
blank.”

Lucero
testified that while she was still in the garage, she heard kids screaming
after defendant reentered the house. She
ran inside. There was a commotion in the
corner of the room where the TV was located; defendant was at the center of the
commotion; “I felt it had to have been my brother.” Lucero saw the victim on the floor next to
the television; he was not moving.

Stankewitz
testified she heard glass break, went into the family room, and saw Lucero
holding defendant against the window; she saw the victim’s legs. She got the kids and went outside. Steel was unable to describe what happened,
saying she just went black in her head, heard screaming, and got the kids
outside. She was interviewed that day by
a detective whom she told she saw defendant “take the sledge hammer . . . and
slam the guy several times in the head with it.”

Defendant
left the house. Lucero called 911. Stankewitz also testified she called 911 and
told the dispatcher they needed an ambulance because someone had been hurt.

Deputy
Sheriff Brian Quintard was dispatched to the residence shortly after 4:30
p.m. As Deputy Quintard pulled up to the
home, several people outside flagged him down; they asked him to go inside and
check if the victim was dead. He went
inside the home where he saw the victim lying on his back on the floor with “a
large pool of blood around his head.”
There was a ball-peen hammer lying in the blood “about a foot or two
away from his body.” The victim gave out
a gasp for air.

Deputy
Quintard radioed for the ambulance service to hurry up. “[T]he left side of [the victim’s] head had
[sustained] severe head trauma.” “It
looked like there was holes in the . . . head.”
When the ambulance personnel arrived, they attempted to resuscitate the
victim for 10 to 15 minutes. They then
transported him to the hospital.

Detective
Jerry Shelton was dispatched to help locate defendant. Detective Shelton found him standing in front
of a gas station mini-mart. Defendant
was “[c]alm and cooperative.” Defendant
was transported to the police station.

Detective
Scott Cannon testified that when he interviewed Steel that day, she told him
she saw defendant walk up to the victim with a hammer, begin shouting at him,
called him a son of a bitch, and struck him in the head with the hammer; the
victim fell to the ground and defendant struck him five to six more times;
Lucero intervened and defendant left. In
Detective Cannon’s interview with Lucero, she told him she saw her brother
“striking the victim as he lay on the ground.”
She saw a lot of blood.
Stankewitz told him she saw the victim laying on the ground after the
attack; there was a lot of blood.

Crime
Scene Specialist Michelle Alcantara testified she found and photographed a
16-inch long hammer in a pool of blood at the scene. She took it to the medical examiner at his
request. Crime Scene Specialist Kathy
Schnell testified the blood spatter in the vicinity was “consistent with
someone who was repeatedly hit with” the ball-peen hammer found nearby “in a
very forceful and rapid fashion repeatedly.”

Dr.
Steven Trenkle performed the autopsy of the victim on November 11, 2009. His first observation was “there was a lot of
blood, dried blood, that was present on the face and the scalp.” “Because in this case he did have a
considerable amount of dried blood on the body, we washed the body. His specific injuries are primarily about his
head.” The victim had “aspirated blood,
so there was bleeding in the back of the throat essentially, and he had
inhaled, as he was breathing, inhaled some of that blood into the lungs.” “All of the injuries [the victim] had were
blunt force injuries, and from the surface they were a combination of
abrasions, lacerations, and contusions or bruises. [¶]
Internally he had a lot of href="http://www.sandiegohealthdirectory.com/">skull fractures and internal
injury to the brain.”

“[T]he
skull was massively fractured. There
were multiple fractures, and the fractures went across the base of the
skull. The frontal bones where the eyes
are, underneath those, the bone was fractured, and across the base of the skull
from the right side to the left side.”
The victim’s injuries were consistent with blows received from the
ball-peen hammer brought to him by Alcantara.
The cause of death was the infliction of “[m]ultiple blunt head
injuries.”

Detective
Steven Pennington interviewed defendant that evening at about 8:00 p.m. “On [defendant’s] shirt, on the chest area
was an area of . . . blood transfer, blood smears. His lower pant legs were saturated with
blood. He had blood in his shoes.” After Detective Pennington read defendant his
rights, defendant waived them and agreed to speak with Detective
Pennington. Defendant stated he had
smoked methamphetamine that morning and had been using daily.

Defendant
reported, “I just lost my mind I guess.
I mean I honestly lost my mind. I
did a bunch of speed. I’ve been smoking
speed for a while . . . and I just lost my mind.” “I hurt that man, I did it. [O]k I did it.” “I think he was working on the TV and I just
went over there and killed him.” He
obtained the hammer from the garage next to the water heater. “I think [the victim] was, he [was] kneeling
down or somethin[g] probably kneeling down.
And I, I came up from behind him and I killed him.” “I hit him hard.” Defendant denied hearing any voices.

Defendant
stated he called 911 from the market next to a Chevron station in order to turn
himself in. “[M]aybe I said to myself,
maybe I’ll be better off in prison or in jail. . . . [M]aybe I would be safer in jail.” Detective Pennington observed during the
interview that defendant’s behavior was not consistent with methamphetamine
use: “when you first came in here
. . . you were real calm and dealing with tweakers^[href="#_ftn4" name="_ftnref4" title="">^[4]] you know they’re all over the
place[.]” Detective Pennington testified
he did not observe any signs of methamphetamine use in defendant’s behavior
during the interview. Nonetheless, a
blood draw of defendant at the time reflected the presence of both
methamphetamine and alcohol.

Prior
to trial, defense counsel expressed a doubt regarding defendant’s mental
competency to stand for trial. The court
stayed proceedings to permit a psychological evaluation of defendant. After evaluating defendant, Dr. Alvin
Chandler compiled a report in which he noted defendant reported no prior
history of psychological treatment.
Nonetheless, defendant reported hearing and seeing things since
1992. He reported drinking and taking
cocaine and methamphetamine since the eighth grade.

Dr.
Chandler observed defendant’s “affect was often not consistent with the content
of the interview. This lack of
consistency left a sense of possible conscious deception, on the part of the
defendant. . . . His medical records did
not indicate any concern over possible serious psychiatric issues by any of the
medical or mental health experts, who documented their observations and
opinions in his medical records. He was
manipulative, demanding, intelligent and intimidating in his interactions. . .
. [Defendant] frequently interrupted the
conversation and directed it to the issues that he wanted to address,
especially as it related to his alleged history of a psychotic disorder.”

Dr.
Chandler concluded there were a number of reasons why it was unlikely defendant
had a psychotic disorder. “[T]est
result[s] clearly indicat[e] that [defendant was] malingering, in an effort to
avoid criminal prosecution.” “The
defendant appears to have falsely reported active symptoms of a serious mental
disorder.” The court found defendant
competent to stand for trial.

Defendant
testified he had ingested copious amounts of methamphetamine and had been
drinking before arriving at Steel’s home.
He had been using methamphetamine daily for more than two years. “I started hearing things.” “I’ve been hearing things for a long time”;
for 30 years, even before he started using methamphetamine. When he used methamphetamine, he would hear
the voices more. “I get messages from
the . . . police and from the radios, televisions.”

The
voices told him to kill police. The
voices told him “to kill or be killed.”
The voices tell him “to keep the population down, to regulate the
population, you have to—eventually—you’re going to be called to kill somebody
or you’re going to be killed.” He
thought about killing earlier in the day.


While
he was in the garage smoking, he saw the police drive up the cul-de-sac and
park across the street.href="#_ftn5"
name="_ftnref5" title="">^[5] When he saw the police car
he thought that if he didn’t kill someone they were going to kill him. The voice said “go in there and kill.” The voice was controlling him. That was when he grabbed the hammer in the
garage in order to kill someone. He went
inside the house with the intent to kill.
Defendant killed the victim by beating the victim about his head with
the hammer. He did not know why he killed the victim. He believes it is wrong to kill.

Dr.
Michael Kania, a clinical
forensic psychologist, spoke with defendant on December 23, and 26,
2010. Defendant reported heavy use of
methamphetamine and the harboring of paranoid delusional beliefs. He reported the mafia and government were
sending him messages over the TV and radio to control the population by killing
people. Prolonged use of methamphetamine
exacerbates the symptoms of someone suffering from paranoid delusions. Defendant’s presentation was in conformity
with those reports. Dr. Kania opined
defendant suffered from paranoid schizophrenia for a number of years, which had
been worsened by his use of methamphetamine.

Defendant
had prior convictions in 1993 for voluntary
manslaughter, attempted forcible rape, assault with a deadly weapon, and false
imprisonment. Dr. Kania had
evaluated defendant in 1993, though he did not remember having done so when he
evaluated defendant and wrote the report in the current case. In subsequently looking at his previous
report, he noted there was no indication of defendant’s psychosis. Defendant did not report hearing voices or
having any directions to kill during that previous interview. Nonetheless, during his most recent
interviews with defendant, defendant reported he had heard voices when he
committed the previous crimes.

Dr.
Kania did not read Dr. Chandler’s report dated January 12, 2010, regarding
defendant’s competency to stand for trial.
He testified he would be interested in reading the report to the extent
it reflected on defendant’s propensity for malingering. Dr. Kania’s own report reflected “that
[defendant’s] responses to the testing suggest conscious overstatement of his
level of disturbance, raising the possib[ilty] of malingering.” Dr. Kania did not listen to the recordings of
defendant’s interview with the police; if defendant had denied hearing voices
at the time of the crime, that would be something he would have wished to
consider in rendering a diagnosis.

DISCUSSION

A. CALCRIM NO. 627

Defendant
contends the court should have instructed the jury on its own motion with
CALCRIM No. 627, hallucination and its effect on the jury’s determination of
premeditation and deliberation. He
maintains the court’s failure to do so violated his constitutional right to due
process by prejudicially lowering the People’s burden to prove defendant’s
intent in committing the murder. We hold
that CALCRIM No. 627 is a pinpoint instruction, which the court has no sua
sponte duty to give.

“[E]vidence
of a hallucination—a perception with no objective reality—is admissible to
negate deliberation and premeditation so as to reduce first degree murder to
second degree murder.” (>People v. Padilla (2002) 103 Cal.App.4th
675, 677.) CALCRIM No. 627 provides: “A hallucination is a perception not based on
objective reality. In other words, a
person has a hallucination when that person believes that he or she is seeing
or hearing [or otherwise perceiving] something that is not actually present or
happening. [¶] You may consider evidence of hallucinations,
if any, in deciding whether the defendant acted with deliberation and
premeditation. [¶] The People have the burden of proving beyond
a reasonable doubt that the defendant acted with deliberation and
premeditation. If the People have not
met this burden, you must find the defendant not guilty of first degree
murder.”

The
trial court has a sua sponte duty to give defense instructions supported by
substantial evidence and consistent with the defendant’s theory of the
case. (People v. Barton (1995) 12
Cal.4th 186, 194-195; People v. Baker (1999) 74 Cal.App.4th 243,
252.) However, instructions that relate
“particular facts to the elements of the offense charged” are pinpoint
instructions that a trial court has no sua sponte duty to issue to a jury. (Barton, at p. 197.)

“[E]vidence
‘proffered in an attempt to raise a doubt on an element of a crime which the
prosecution must prove beyond a reasonable doubt’ may, but only upon request,
justify the giving of a pinpoint instruction that ‘does not name="sp_4040_675">name="citeas((Cite_as:_50_Cal.4th_616,_*675,_2">involve a “general
principle of law” as that term is used in the cases that have imposed a sua
sponte duty of instruction on the trial court.’
[Citation.] ‘Such instructions relate
particular facts to a legal issue in the case or “pinpoint” the crux of a
defendant’s case, such as mistaken identification or alibi. [Citation.]
They are required to be given upon request when there is evidence
supportive of the theory, but they are not required to be given sua sponte.’ [Citation.]”
(People v. Jennings (2010) 50
Cal.4th 616, 674-675 [finding trial court not required to give sua sponte
instruction on “complete defense” of accident that would negate the intent
element necessary for first degree murder convictions where defense hinged on
facts particular to the case and the defendant failed to request the
instruction]; People v. Saille (1991)
54 Cal.3d 1103, 1107 [trial court had no duty to instruct jury on voluntary
intoxication on its own motion in order to negate intent element of
premeditated murder where evidence is not a defense, but an attempt to raise a
doubt]; People v. Ervin (2000) 22
Cal.4th 48, 91 [trial court had no duty to instruct on mental disorder on its
own motion in premeditated murder case where instruction not requested].)

Here,
to the extent defendant maintained his hallucinations precluded him from
manifesting the requisite deliberation and premeditation to be convicted of
first degree murder, he was attempting to raise a doubt regarding the intent
element of the crime based on facts particular to his case, rather than raising
a defense based on a general principle of law.
In other words, “hallucination” is not a general defense, but rather a
theory that attempts to negate the intent element of the crime depending upon
the individual facts attached to a specific case. Thus, a court is not required to instruct
with CALCRIM No. 627 without a specific request to do so.

Here,
defendant did not request the court instruct the jury with CALCRIM No. 627,
though he was given opportunity to do so.
Defendant requested the court instruct the jury with CALCRIM No. 625,
voluntary intoxication, which is likewise a pinpoint instruction the court is
not required to give without a request.
(People v. Saille, >supra, 54 Cal.3d at pp. 1119-1120.) The court instructed the jury with CALCRIM
No. 625. Thus, even though evidence was
adduced at trial that would have supported giving CALCRIM No. 627, the court
was not required to do so without a request from defendant.href="#_ftn6" name="_ftnref6" title="">^[6]

B. MARSDEN
HEARING

Defendant
contends the court committed prejudicial error by failing to provide him with
an adequate hearing to permit elucidation of his concerns with defense
counsel’s performance; thus, effectively barring him from establishing whether
defense counsel was failing to provide constitutionally adequate
representation. We disagree.

Prior
to trial on February 25, 2011, the court heard defendant’s Marsden motion to relieve his appointed counsel and appoint him new
counsel. Defendant contended defense
counsel had a bad attitude toward him, had not seen him in 16 months, and that
defendant was not receiving treatment for his diagnosed mental health condition
of paranoid schizophrenia. The court denied
the motion.

On
March 11, 2011, likewise prior to trial, defendant again moved to dismiss his
appointed counsel. The court ordered the
courtroom cleared and heard defendant’s Marsden
motion. Defendant maintained defense
counsel told him he had no chance of winning, and he was still not receiving
psychological help. The court denied the
motion.

On
March 17, 2011, in the middle of the People’s case-in-chief, as the People
questioned one of its witnesses on direct, defendant stated, “He’s trying to
railroad me, this guy here. He calls me
a killer.” The court told the witness to
cease her testimony as defendant declared, “Railroading me.” The court excluded the jury and witness from
the court room and informed defendant it was not in his interest to say
anything in front of the jury unless he was on the witness stand.

Defendant
informed the court, “I just feel my lawyer is railroading me. He doesn’t want to communicate with me. Yesterday I had an argument with him. He didn’t want to talk to me. He said, I don’t want to talk to you. How do you think I feel? This man representing me has an attitude with
me in this situation in a murder trial.
I don’t feel comfortable. I don’t
like my representation at all. This is
not fair to me.” The court informed
defendant it would do everything it could to preserve the trial and ensure its
fairness, including excluding defendant from trial if necessary. The court observed, “I don’t know what it is
that is in your mind, but this is not the time for a Marsden hearing. That’s
already happened. In fact, you had two
and both of them were denied.” The court
declared that defense counsel “is a very skilled attorney. He can represent you. He says he can represent you. There’s already been a determination
made.”

Defendant
retorted, “I’m trying to communicate with him.
We have a communication problem.
I don’t think that’s a very good choice to have this man represent me
when we have a communication problem. We
can’t talk to each other. We’re not on
the same page.” The court noted defense
counsel could not talk to defendant while witnesses were being examined because
he had to pay attention to the testimony.
Defendant responded: “Even when
we’re not in trial. We have a
communication problem. We have no
communication at all. I’m totally in
left field with this man, and yet you apply him to me. I don’t feel that’s right. I don’t feel you’re making a right decision,
Judge—your Honor.” The court reprimanded
defendant to either behave himself or be excluded from the proceedings. The court had the jurors brought back into
the courtroom and directed them to disregard anything they heard regarding the
incident.

The
People continued their examination of the preceding witness, and called three
additional witnesses. The court then
engaged in the following colloquy with defendant and defense counsel outside
the jury’s presence, but within the presence of the People:

“The
Court: . . . I’ve noticed since the time
of this morning’s unsolicited comments from you, [defendant], that you have
spent quite a bit of time with head huddled with [defense counsel] and you
speaking to him, him speaking back to you.
[¶] What is it now? Are you saying that he’s not talking to you
still?

“[D]efendant: I was asking him about certain things like my
paperwork.

“The
Court: I really don’t want you to tell
me what the nature of the conversation was.
I’m saying, are you still saying that you’re not able to communicate
with [defense counsel]?

“[D]efendant: We have a communication problem.

“The
Court: And the communication problem is?

“[D]efendant: It seems like it’s personal. I don’t know what his problem is. It seems like he has a personal thing. Maybe it’s—it’s the whole case itself, the
nature of it. Maybe it’s really
distasteful to him or something, but I had a—interview with him back at the
jail—

“[Defense
Counsel]: We’re not going to talk about
what we discussed.

“The
Court: I think it’s time you listen
very, very carefully. All I asked you is
if it is still your opinion that you’re not—that there’s no communication
between you and [defense counsel]?

“[D]efendant: Only barely now that you’ve mentioned it, you
know, just a little while ago that you are—now I’m starting to see some slight
changes in his demeanor with me, his communication is starting to change at
this point right now at this stage, and I think that we’re far into the
stage. It should have been like this a
long time ago, and it barely started a couple minutes ago.

“The
Court: That would be inconsistent with
my observations of what’s happened throughout the course of this trial. I was watching during jury selection. [Defense counsel] would talk to you before
exercising peremptory challenges, and you were talking back and forth about the
make up of the panel that was selected.
There was clearly communication in my opinion. [¶]
I’ve heard him over the—seen him consulting you over the course of this
trial so far, not just today, about what questions you think there might be
that should be asked of any particular witness. He’s consulting you on that subject or talking
to you about that. It seems that there
isn’t a sudden communication between you and your attorney, but at least you’re
indicating to me that you’re communicating at this time; is that right?

“[D]efendant: He may be a very skilled lawyer, but he’s
very unprofessional, and he’s throwing paperwork at me like this here
(indicating). You think that’s
professional at this point in time?

“The
Court: I’ve seen nothing of that
sort. The record should reflect that you
seem to have just picked up a piece of paper and sort of—

“[D]efendant: I was just displaying what you’re asking me
about all this. I’m telling you that
that is his demeanor, this was his action to me. I didn’t like that, you know. So I threw paperwork back at him, you
know. I don’t think that was
professional for him to—my lawyer.

“The
Court: Okay. [Defense counsel], did you throw papers at
your client?

“[Defense
Counsel]: No.

“The
Court: [Defense counsel], are you
refusing to talk to your client?

“[Defense
Counsel]: No.

“[D]efendant: Yesterday he refused to talk to me.

“[Defense
Counsel]: Don’t talk about what we talk
about. Just answer the questions.

“[D]efendant: No, I’ve—

“The
Court: [Defense counsel], how many
murder trials have you handled?

“[Defense
Counsel]: I think we’re in the mid-80
cases now.

“The
Court: So in all those cases, was your
client—in all of the murder trials, was your client accused of murder?

“[Defense
Counsel]: Yes.

“The
Court: Is this case one that is so
disgusting or appalling to you that it leaves you angry at [defendant] in such
a way that you feel that that interferes with you ability to represent him?

“[Defense
Counsel]: No, your Honor. After doing this this long, the nature of the
case is not something that I consider. I
just do my job.

“The
Court: All right. I think this record is sufficient. I’m not going to go further. I’m not going to do any further hearing on it
at this point. I just wanted to put my
observations on the record and give everybody a chance to make their comments.”

“‘When a defendant seeks
substitution of appointed counsel pursuant to Marsden[,] “the trial court must permit the defendant to name="SR;17847">explain the
basis of his contention and to relate specific instances of inadequate
performance. A defendant is entitled to
relief if the record clearly shows that the appointed counsel is not providing
adequate representation or that defendant and counsel have become embroiled in
such an irreconcilable conflict that ineffective representationname="sp_4645_777">name="citeas((Cite_as:_54_Cal.4th_205,_*230,_2"> is likely to
result.”’ [Citation.] ‘A trial court should grant a defendant’s name="SR;17928">Marsden
motion only when the defendant has made “a substantial showing that failure to
order substitution is likely to result in constitutionally inadequate
representation.”’ [Citation.]”
(People v. Streeter (2012) 54
Cal.4th 205, 230.) “‘We review the
denial of a Marsden motion for abuse of discretion.’ [Citation.]
‘Denial is not an abuse of discretion “unless the defendant has shown
that a failure to replace counsel would substantially impair the defendant’s
right to assistance of counsel.”’
[Citation.]” (>Ibid.)

Defendant maintains the court’s
failure to conduct a Marsden hearing
outside the presence of the People immediately following his outburst during
trial resulted in prejudicial error because defendant could have disclosed
information that his counsel was providing ineffective assistance such that the
court would have been required to remove defense counsel and appoint new
counsel. Although we agree that the
better practice would have been to immediately hold an in camera hearing outside the presence of the People, in which the
court could have examined defendant and defense counsel regarding the precise
areas of defendant’s discontent, we find no prejudice. (People
v. Madrid (1985) 168 Cal.App.3d 14, 19 (Madrid)
[“We believe the better practice is to exclude the district attorney when a
timely request is made to do so by the defendant or his counsel. In the absence of a request, the trial court
should exclude the district attorney whenever information would be presented
during the hearing to which the district attorney is not entitled, or which
could conceivably lighten the prosecution’s burden of proving its case. [Citation.]”].)

Here, as the court observed, href="http://www.mcmillanlaw.com/">defense counsel did not have the
opportunity to communicate at length with defendant while the trial was
ongoing. Defense counsel was required to
pay attention to the witnesses’ testimony so he could effectively prepare
defendant’s defense. Moreover, the court
noted that it had seen defense counsel interact with defendant during the
trial. Although the court’s observations
cannot be the sole basis upon which to deny a Marsden motion, here, the court also examined defense counsel
regarding the complaints made by defendant; defense counsel stated he had not
refused to communicate with defendant.

On this cold record, we can neither
contradict the court’s observations that defense counsel was communicating with
defendant both before and after defendant’s outburst, nor can we override the
court’s obvious factual determination that it believed defense counsel’s
assertion that there was no communication problem, over defendant’s claim to
the contrary. Indeed, even defendant
acknowledged that his communication with defense counsel had improved since his
initial outburst. Furthermore, it is
unlikely defense counsel would have had much additional opportunity to
communicate with his client at length during the subsequent examination of four
witnesses by the People for the very reasons stated by the court; thus,
defendant was not prejudiced by the delay between his initial outburst and the
court’s hearing on the matter. Likewise,
defendant’s two pretrial Marsden
hearings were based, at least in part, on claims of inadequate
communication. The courts’ denial of
those motions support this court’s ultimate conclusion there was no failure to
communicate, because defense counsel had much more opportunity to communicate
with his client prior to trial.

Finally, defendant’s claim that he
was prejudiced by the People’s presence at the subsequent hearing on his
complaints because he was effectively chilled from expressing all his bases of
disgruntlement with defense counsel for fear of disclosing confidential
information, is simply not borne by the record.
Neither defendant nor defense counsel made any request that the trial
court exclude the People from the hearing.
(Madrid, supra, 168 Cal.App.3d at p. 19.)
As that court noted, “no single, inflexible procedure exists for
conducting a Marsden inquiry.
Indeed, several of the reported decisions reveal the presence of the
district attorney during the Marsden hearing. [Citations.]”
(Id. at p. 18.)

Here, the trial court conducted the
hearing in a manner in which it thought best, considering the particular
circumstances of the procedural posture of the case. “The procedural parameters of the Marsden
inquiry should be shaped by the particular facts and interests involved. The
trial court is in the best position to assess whether the defendant’s motion,
as here, is frivolous or for purposes of delay and can be most expeditiously
handled in open court so the court can efficiently manage its calendar.” (Madrid,> supra, 168 Cal.App.3d at p. 19.) “The trial court did not abuse its discretion
by failing to exclude the district attorney from the Marsden hearing
when [the defendant] did not object to the district attorney’s presence until
after a full Marsden inquiry had been conducted name="SDU_20">and
his stated basis for the motion did not indicate he would disclose any
inappropriate information to the prosecution.”
(Id. at pp. 19-20.) Here, defendant did not object to the
People’s presence at the hearing either before or after the hearing, and
defendant never indicated any confidential basis for seeking to have defense
counsel relieved. Thus, the court acted
within its discretion in both the manner in which it held the hearing and in
implicitly denying defendant’s request.

>DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS



MILLER

J.





We concur:





RAMIREZ

P.
J.





HOLLENHORST

J.