Opinion
D059737
01-14-2013
THE PEOPLE, Plaintiff and Respondent, v. RAUL ARELLANO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCE279681)
APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed.
INTRODUCTION
A jury convicted Raul Arellano of seven counts of committing a lewd act on a child under 14 years old involving substantial sexual conduct (Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8); counts 3-9) and one count of unlawful sexual intercourse with a minor more than three years younger than him (§ 261.5, subd. (c); count 10). The trial court sentenced him to 18 years 8 months in prison.
Further statutory references are also to the Penal Code unless otherwise stated.
The jury acquitted Arellano of two other counts of committing a lewd act on a child under 14 years old involving substantial sexual conduct (counts 1 & 2) and one count of committing a lewd act upon a child 14 or 15 years of age (§ 288, subd. (c)(1); count 11). Counts 1 and 2 involved conduct occurring in April and May 2007, respectively. Counts 3 through 9 involved conduct occurring in June through December 2007, respectively. Counts 10 and 11 were alternative charges and the trial court instructed the jury that if it found Arellano guilty of one of the charges, it had to find him not guilty of the other.
Arellano appeals, contending we must reverse his convictions for counts 3 through 9 because the victim's generic, contradictory accounts provided insufficient evidence to support these convictions and these convictions violated his right to a unanimous jury. In addition, he contends we must reverse his conviction for count 10 because his trial counsel provided ineffective assistance by failing to move under section 995 to dismiss this charge for lack of jurisdiction. He further contends he is entitled to a new trial because the trial court did not sufficiently investigate his motion for replacement counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) or, alternatively, erroneously denied his motion. We conclude each of these contentions lacks merit and affirm the judgment.
BACKGROUND
In 2006, the then 12-year-old victim lived with Arellano and his wife, Maria, for a couple of months. Arellano, who was 27 or 28, would pick the victim up from school and they would be home when Maria returned from work. On one occasion, Maria arrived home and her bedroom door was locked. After five or ten minutes, the door was unlocked. Maria found Arellano and the victim inside. The victim said she was sleeping. Arellano said he was in the shower and did not hear Maria knock on the bedroom door. On another occasion, Maria went into the kitchen and saw Arellano and the victim with their pants down having sex. Maria did not mention either incident when she testified at Arellano's preliminary hearing because she was scared her failure to report the incident would cause her to lose custody of her children.
Some time after these incidents, Arellano apologized to Maria. He told her he tried, but could not stop having sex with the victim. Maria subsequently left Arellano.
In April 2008 Maria and the victim were living with the victim's mother in San Diego. One day, when Maria was on her way home and about two or three miles away, she saw Arellano drive by in his van. He pulled over and she asked him why he was at her house or where he was coming from. She could not recall his response, but when Maria arrived home, the victim was not there and the victim's mother did not know her whereabouts. When the victim came home a few minutes later, Maria asked her if she had been with Arellano. The victim became upset and said, "Yes."
The victim's mother struck the victim. When the victim raised her arm and attempted to strike her mother back, Maria called the police. The victim then locked herself in the bathroom and said she was not going to speak to anybody.
Two San Diego police officers responded to Maria's call. The victim came out of the bathroom and talked with them. She initially denied ever having sexual contact with Arellano, but then told them she had had sex with Arellano at his home in El Cajon at about 4:00 p.m. that day. She said it was not the first time. The first time was in the bedroom of Maria and Arellano's apartment, where Maria almost caught them. About a month later, in January 2007, the day before her 13th birthday, she and Arellano had sex again. She told one of the officers that, from then on, they had sex once a month until about February 2008 and about once a week after that. She told the other officer that, until a couple weeks earlier, they had been having sex twice a month. The sex occurred at Arellano's home in El Cajon. The victim told the officers she was in love with Arellano. She was calm and did not cry when she discussed their sexual relationship.
An El Cajon police officer was called to the victim's home. The victim told the officer Arellano was Maria's estranged husband. The victim also told the officer she had been having an ongoing sexual relationship with Arellano and, during that period, they engaged in consensual vaginal sex once a week at his home in El Cajon.
Early the following morning, Maria and the victim's mother took the victim to a hospital where a child abuse pediatrician examined her vaginal and anal areas and took swabs from her labia, vagina, and cervix. Arellano was a contributor to DNA in sperm found on the labia swabs. The victim told the doctor the last time she engaged in sexual activity was around 4:30 p.m. the prior day.
Approximately a week later, the victim ran away from home. Maria sent Arellano a text message stating she knew the victim was with him, the police were looking for the victim, and Arellano should bring her back home. A week and a half later, Arellano contacted Maria and asked her to run away with him because he would be imprisoned for six years for his conduct with the victim, but Maria refused.
The victim returned home about five and a half months later, after police officers arrested Arellano. The victim was with Arellano when the officers arrested him and had been with him for much of the time she was away from home. During her time with him, when she was still 14 years old, they had sex many times. She continued to have a sexual relationship with him when she turned 15.
She remained at home for about six months and ran away again after being subpoenaed and ordered to appear in court to testify at Arellano's first trial. She returned home some months later, but then ran away once more a couple of weeks afterwards.
Because of her disappearance, the trial court declared a mistrial.
When she returned home again, she was noticeably pregnant. She gave birth to her child in November 2010. The day before Arellano's second trial, she ran away with the child, who was then two months old.
Because it appeared the victim was unavailable to testify, her preliminary hearing testimony was read to the jury. At the preliminary hearing, the victim, then 14 years old, testified she had known Arellano for a year and he was married to Maria. The victim denied having sexual relations with Arellano. She only told the police officers she had sex with Arellano because the police officers pressured her to talk to them and she did not think she was going to get Arellano in big trouble. She denied telling the officers she thought she was in love with Arellano.
Just before the People planned to rest their case, the victim appeared at trial. At that time she was 17 years old and she testified Arellano was the father of her child. The child was conceived in Mexico, where the victim had stayed with Arellano for six to eight months. She initially testified she first had sex with Arellano in January 2008, a week before she turned 14. She then quickly changed her testimony and said she was already 14 when she first had sex with him. She had sex with him once on the day the police officers came to her home and once, for the first time, the week prior. Both times were at his mother's home in Tijuana, Mexico. She said on the day Maria called the police to their home, she had ditched school, taken the bus and trolley to Tijuana, had sex with Arellano at his mother's house there, then returned to San Diego by trolley and bus around 4:00 p.m. or 5:00 p.m.
The victim admitted she told one of the San Diego police officers the first time she had sex with Arellano was at Maria and Arellano's apartment and the next time was the day before her 13th birthday. In addition, she admitted she told one of the police officers she had been having sex with Arellano twice a month until a few weeks before Maria summoned the officers to their home. She also admitting telling the officers that Arellano would pick her up after school and also on Saturdays, he did not use a condom, he ejaculated on the bed or paper, and she thought she was in love with him. She said she lied about having sex with Arellano before she turned 14 because Maria was "messing with" her boyfriend and she wanted Maria to think she was "messing around" with Arellano. She further testified she was in foster care on her 13th birthday and was not allowed to go anywhere other than school.
The victim similarly admitted she told an El Cajon police officer that she had been having an ongoing, consensual sexual relationship with Arellano for about one year, she and Arellano had been meeting once a week at Arellano's apartment in El Cajon to have sex, and they had been having sex twice a month until a couple of weeks before April 2008. The victim further admitted lying at the preliminary hearing. She said she did so because she did not want to get herself in trouble for having sex with him.
Although the victim lived with her mother and Maria for a couple months before Arellano's second trial, she became upset with Maria because Maria had been writing letters to Arellano. The victim testified she loved Arellano, felt Arellano now belonged to her, and she did not want to get him in trouble.
DISCUSSION
I
Counts 3 through 9
A
Sufficiency of the Evidence
Arellano contends we must reverse his convictions in counts 3 through 9 because the victim's nonspecific, contradictory accounts of when and how often they had sex precluded the existence of sufficient evidence to support his convictions. In deciding claims of insufficient evidence in criminal cases, " 'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" [Citation.]' [Citations.] The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 507-508.)
A victim's statements may support a conviction under section 288, subdivision (a), if the statements "describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (People v. Jones (1990) 51 Cal.3d 294, 316 (Jones); accord, People v. Crow (1994) 28 Cal.App.4th 440, 446 (Crow).)
In this case, when San Diego police officers responded to the victim's home, the victim told the first San Diego police officer with whom she spoke that she had had sexual intercourse with Arellano earlier in the day. She also told the officer she had been having sexual intercourse with Arellano about once a month from January 2007 until about February 2008 and then about once a week thereafter. These statements describe the kind of act committed (sexual intercourse), the number of acts committed (about once a month), and the general time period in which the acts occurred (from January 2007 to April 2008) with the requisite degree of specificity. Accordingly, these statements provide sufficient support for Arellano's convictions for counts 3 through 9.
Although the victim made slightly different statements to two other police officers regarding the number of acts committed, recanted her various statements at the preliminary hearing, and then gave completely contradictory testimony at Arellano's second trial, these discrepancies do not preclude the existence of substantial evidence to support the jury's verdicts. It is the jury's role to resolve witness credibility issues. (People v. Ennis (2010) 190 Cal.App.4th 721, 728-729.) Here, the jury resolved the issues related to the victim's credibility by largely accepting as true the statements she made to the first San Diego police officer with whom she spoke. On appeal, we may not reject witness statements the jury accepts as true unless the statements are facially improbable, physically impossible, or demonstrably false without resort to inferences and deductions. (Ibid.)As the victim's statements to the first San Diego police officer do not fall into any of these categories, they are sufficient to support the jury's verdicts.
B
Unanimous Jury Verdict
1
As part of its instructions for counts 1 through 9, the trial court instructed the jury on the state constitutional requirement for a unanimous jury verdict (Cal. Const., art I, § 16) with a tailored version of CALCRIM No. 3501. The instruction informed the jury, "The defendant is charged in counts 1 through 9 with committing a lewd act upon a child sometime during the period of April 1, 2007, through December 31, 2007. The People, through the District Attorney, have presented evidence of more than one act to prove the defendant committed these offenses. You must not find the defendant guilty unless, one, you agree that the People have proved that the defendant committed at least one of these acts, and you all agree on which act he committed for each of the nine charged offenses in counts 1 through 9. Or you all agree that the People have proved that the defendant committed all of the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged in counts 1 through 9." (Italics added.) The trial court later clarified the instruction's time period reference meant the time period listed in the particular count under consideration.
2
Arellano contends that his acquittal on counts 1 and 2 necessarily means the People did not prove "all of the acts alleged to have occurred" as required by the latter part of unanimity instruction. Consequently, he contends his convictions for counts 3 through 9 must be reversed because they violate his due process right to a unanimous jury verdict.
Substantially the same argument was raised and rejected in Crow, supra, 28 Cal.App.4th 440. In that case, the defendant was tried on eight identical counts of committing lewd and lascivious acts on a 13-year-old victim during a nine-month period. (Id. at p. 445.) The jury convicted him of three of the counts and was unable to reach a verdict on the remaining counts. (Ibid.)As here, the defendant argued conviction for fewer than all eight counts deprived him of his constitutional right to a unanimous jury. (Id. at pp. 445-446.)
The appellate court disagreed, explaining, "In the absence of evidence to the contrary, a jury is presumed to have complied with the instructions given to it. [Citations.] Here, the jury was instructed concerning the necessity of unanimity in order to convict. Even in the case of a resident child molester in which the only evidence presented by the prosecution is of a series of separate but indistinguishable acts, that instruction is sufficient to protect a defendant's right to a unanimous jury so long as there is substantial evidence to support the convictions." (Crow, supra, 28 Cal.App.4th at p. 446, citing Jones, supra, 51 Cal.3d at p. 321, fn. omitted.)
Moreover, as clarified by the trial court, the CALCRIM No. 3501 instruction did not require the jury to unanimously agree the People proved all allegations in all counts in order to convict Arellano of any one count. Rather, the instruction required that in order for the jury to convict Arellano of a count, the jury had to agree the People proved either that the defendant committed all of the acts alleged to have occurred during the time period covered by the count, or that he committed at least one of the acts alleged to have occurred during the time period covered by the count and which act or acts. This instruction satisfies the state constitutional unanimity requirement as either alternative would result in a unanimous verdict for the count.
Nothing in Jones, supra, 51 Cal.3d 294, alters our conclusion. The Jones court specifically sanctioned the type of alternative instruction given by the trial court, explaining, "In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citations.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim. [¶] . . . 'In either event, a defendant will have his unanimous jury verdict [citation] and the prosecution will have proven beyond a reasonable doubt that the defendant committed a specific act, for if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act [citations].' " (Id. at pp. 321-322.)
The requirements in Jones, supra, 51 Cal.3d 294, apply separately to each count so that an acquittal on some counts does not preclude convictions on other counts. (Crow, supra, 28 Cal.App.4th at pp. 446-447 & fn. 3.) In fact, in the Jones case, the jury did not convict the defendant of all of the charged counts. Instead of viewing this circumstance as evidence the defendant was deprived of jury unanimity, the Supreme Court viewed it as evidence the defendant benefited from the unanimity instruction because it showed the jury could and did differentiate between the alleged acts of molestation. (Id. at pp. 322-323.)
In this case, there was evidence the victim was in foster care for part of 2007. The jury apparently credited this evidence enough to have reasonable doubt about whether the victim had sexual encounters with Arellano in April and May 2007, but otherwise believed her statements about having had at least monthly sexual encounters with him during the remainder of 2007. Thus, the jury's verdict in this case also showed the jury could and did differentiate between the alleged lewd acts and Arellano benefited from the unanimity instruction.
II
Ineffective Assistance of Counsel
A
At Arellano's request, before the prosecution began presenting its case, the trial court conducted a closed hearing with Arellano and his counsel. During the hearing, Arellano lamented his counsel's failure to subpoena certain witnesses, including the victim, to establish his defense. In particular, he stated he needed the victim to testify to establish that any sexual activity between them occurred in Tijuana, not El Cajon.
The trial court explained that the prosecution had subpoenaed the victim to testify, but she had chosen not to comply with the subpoena. The trial court indicated it would have the prosecution continue to search for her. The trial court also suggested that, if Arellano had some way of contacting her, he should provide the contact information to his attorney.
The trial court and Arellano then had the following discussion:
"[ARELLANO]: How much time tomorrow—if she shows up tomorrow, can she show up tomorrow, or is it too late already?
"THE COURT: No, not at all.
"[ARELLANO]: So I could try to get in contact with them?
"THE COURT: Absolutely.
"[ARELLANO]: Bring them all.
"THE COURT: Use your phone call. Encourage her to come. And any time she's here before we submit the case to the jury, she'd be allowed to testify. Okay. If you could track her down."
Later on the same day, also at Arellano's behest, the trial court held another closed hearing with Arellano and his counsel. During the hearing, Arellano again brought up the need for the victim's testimony. The trial court responded, "Mr. Arellano, I have a hunch, from the way you discussed the matter with me, that you might have a chance to get ahold of her. If you think you can get ahold of her and encourage her to come to court, she'll be allowed to testify. Okay. Thank you, sir."
After the close of evidence, before defense counsel began her closing argument, defense counsel queried whether it would be appropriate for her to comment on the victim's testimony that any sexual activity with Arellano occurred in Mexico. The trial court ruled such argument would be inappropriate because jurisdiction is a legal issue for the court, not a factual issue for the jury. At Arellano's behest, the trial court then conducted a final closed hearing with the defendant and defense counsel. During the hearing, Arellano questioned why the jury would not be allowed to consider whether any sexual activity between the victim and him occurred in Mexico. The trial court explained that the issue of jurisdiction had to be decided by the court, not the jury. Arellano then asked if he could take the stand and testify. The trial court explained it was too late for him to testify because the presentation of evidence had been completed; however, the issue might be addressed at some later point. The record does not show defense counsel raised the jurisdiction issue after the trial.
B
Arellano contends we must reverse his conviction in count 10 for violating section 261.5, subdivision (c), because there was evidence the offense occurred in Mexico and his trial counsel provided ineffective assistance by failing to seek dismissal of this count. " 'The law governing defendant's claim is settled. "A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] 'Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.' " [Citations.] It is defendant's burden to demonstrate the inadequacy of trial counsel. [Citation.] We have summarized defendant's burden as follows: " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " ' " (People v. Vines (2011) 51 Cal.4th 830, 875-876.) "If a claim of ineffective assistance of counsel can be determined on the ground of lack of prejudice, a court need not decide whether counsel's performance was deficient." (In re Crew (2011) 52 Cal.4th 126, 150.)
Here, at the point the defendant first raised the jurisdiction issue, there was no evidentiary support for it. The victim's preliminary hearing testimony indicated no sexual activity ever occurred between her and Arellano, and her statements to police officers indicated the sexual activity charged in count 10 occurred at Arellano's home in El Cajon. It was not until the victim appeared as the last witness on the last day of trial that there was any evidence the sexual activity charged in count 10 may have occurred in Mexico. Thus, Arellano has not established there was a reasonable probability a challenge to the trial court's jurisdiction before the victim testified at trial would have resulted in dismissal of the count.
Although the trial court precluded defense counsel from raising the jurisdiction issue before the jury, the trial court alluded to the possibility defense counsel could raise the issue in a posttrial proceeding. The record is silent as to why defense counsel did not do so. "[W]e must reject a claim of ineffective assistance of counsel if the record 'sheds no light on why counsel acted or failed to act in the manner challenged . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .' " (People v. Riel (2000) 22 Cal.4th 1153, 1216-1217.) One possible, satisfactory explanation for defense counsel's inaction is that defense counsel may have been ethically constrained from pursuing posttrial relief based on the victim's trial testimony. Arellano's exchanges with the court during the closed hearings, the victim's sudden appearance at the end of the trial, her professed love for Arellano, and the significant conflicts among her trial testimony, her preliminary hearing testimony, and her statements to police officers suggest the victim's trial testimony may have been at least partially perjured. If it was and if defense counsel knew it was, defense counsel would have been ethically unable to pursue posttrial relief based on the testimony. (See, e.g., id. at pp. 1217-1218.)
Even if defense counsel had no satisfactory explanation for her inaction, the prosecution need only prove jurisdiction by a preponderance of the evidence. (People v. Betts (2005) 34 Cal.4th 1039, 1053; People v. Cavanaugh (1955) 44 Cal.2d 252, 262.) The victim's initial statements to police, which were corroborated by her subsequent statements to a pediatrician and by Maria's testimony about running into Arellano near the victim's home, meet this burden. The victim's trial testimony provides the only countervailing evidence. The jury implicitly found this evidence incredible and, for the reasons discussed above, the jury's implicit finding is well-supported. Thus, Arellano also has not established there is a reasonable probability a posttrial challenge to the trial court's jurisdiction would have resulted in dismissal of the count.
III
Failure to Adequately Investigate Marsden Motion or
Erroneous Denial of Marsden Motion
A
In addition to the three closed hearings described in part II.A, infra, the trial court conducted a closed hearing under Marsden, supra, 2 Cal.3d 118, to hear Arellano's request for replacement counsel (Marsden motion). During this hearing, which was sequentially the third of four closed hearings the trial court conducted at Arellano's request, Arellano related dissatisfaction with defense counsel's representation because she did not subpoena three witnesses he wanted her to call, she did not ask Maria the questions he wanted asked, she did not provide him with discovery, and she did not meet with him in jail to go over the discovery and the questions he wanted asked. He felt he and defense counsel did not get along because she was not taking his wishes into consideration and because she told his 15-year-old son it would better for him not to be in the courtroom during the trial. Arellano conveyed these points in approximately two pages of reporter's transcript, at which point the trial court interjected.
The trial court indicated that, due to the nature of the allegations against Arellano, it could not fault defense counsel or find she was not appropriately representing Arellano for suggesting Arellano's son not be in the courtroom. However, the trial court stated it would not exclude Arellano's son from the courtroom if Arellano wanted him to be there and if his son wanted to be there. The trial court subsequently had someone inform Arellano's son he could come into the courtroom.
Regarding the three witnesses Arellano wanted called and the questions Arellano wanted asked, the trial court indicated he could not find defense counsel was not doing a good job because she had determined certain witnesses should not be called or certain questions should be asked differently or not at all. The trial court reminded Arellano they discussed the three witnesses in closed hearings the previous day.
During those hearings, Arellano informed the court that two of the witnesses were brothers who had lived with Arellano and Maria and were purportedly always with Arellano. One of them was the victim's boyfriend and one was with Arellano the day Maria said she saw Arellano in his truck. The other was a friend of the victim's, who purportedly had an e-mail message in which the victim confessed "so many things." The victim's friend also could purportedly confirm the victim had a boyfriend during the relevant time period and the victim was with her boyfriend, not Arellano.
Defense counsel interviewed these witnesses and determined at least some of them were not telling the truth. Consequently, she was unwilling to put them on the stand. In addition, she determined one of the brother's testimony was irrelevant and the other brother, who was in juvenile detention at the time of his interview, was "very low functioning" and had difficulty processing and answering her questions. Furthermore, the victim's friend never mentioned having a relevant e-mail message and she provided no other relevant information.
Finally, regarding the communication difficulties, the trial court noted it had observed reasonable communication between defense counsel and Arellano during the trial, including defense counsel looking at and asking questions the defendant gave her. Defense counsel also confirmed her communication with Arellano was sufficient for her to vigorously represent him.
B
Arellano contends he is entitled to a new trial because the trial court denied his Marsden motion without conducting a sufficiently thorough investigation into its merits. He alternatively contends the trial court erroneously denied his motion.
" ' "When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief 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." ' [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would 'substantially impair' the defendant's right to effective assistance of counsel." ' " (People v. Vines, supra, 51 Cal.4th at p. 878.)
1
Regarding Arellano's first contention, he correctly points out a trial court cannot thoughtfully exercise its discretion to grant or deny a Marsden motion without listening to a defendant's reasons for requesting a change of attorneys. (Marsden, supra, 2 Cal.3d at p. 123.) If the trial court does not inquire into the defendant's reasons and denies a Marsden motion based solely on courtroom observations, the trial court abuses its discretion. (Id. at p. 124.)
Nonetheless, " ' "a Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement." ' " (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) A trial court fulfills its inquiry obligation if it gives the defendant an opportunity to state all of his or her complaints and the trial court listens to the complaints. (People v. Vera (2004) 122 Cal.App.4th 970, 980; People v. Penrod (1980) 112 Cal.App.3d 738, 745; People v. Williamson (1985) 172 Cal.App.3d 737, 745.)
The record demonstrates the trial court fulfilled its inquiry obligation in this case. Specifically, the record shows the trial court conducted three closed hearings during the two-day trial to hear Arellano's complaints about defense counsel. These complaints included that defense counsel did not call three witnesses he wanted called, she did not provide him with requested discovery, she did not ask the prosecution witnesses, particularly Maria, the questions he wanted asked, and she showed she disliked him and could not effectively communicate with him by telling his teenage son he should not attend the trial. The trial court demonstrated it had listened to Arellano's complaints by attempting to summarize them, clarify them and, in some instances, immediately address them (i.e., by informing Arellano the victim would be allowed to testify if she appeared and his son would be permitted in the courtroom).
Because of the their content and the manner in which the trial court handled them, all of the hearings were essentially Marsden hearings; however, only the third hearing was actually denominated as such.
At each hearing, Arellano tended to express himself in a rambling, emotional manner and, by the third closed hearing, his remarks were largely repetitive. While the trial court interrupted Arellano twice during the third closed hearing to summarize and sort through Arellano's complaints, these interruptions did not violate the trial court's inquiry duty because both occurred when Arellano was reiterating a point he had previously made. "[A] defendant is not entitled to keep repeating and renewing complaints that the court has already heard." (People v. Vera, supra, 122 Cal.App.4th at p. 980.)
People v. Lewis (1978) 20 Cal.3d 496 (Lewis)and People v. Ivans (1992) 2 Cal.App.4th 1654 (Ivans), upon which Arellano relies, are both distinguishable. In Lewis, the trial court denied the defendant's Marsden motion without giving the defendant any opportunity to state the reasons for the motion. (Lewis, supra, at pp. 498-499.) In this case, the trial court gave Arellano three opportunities to state the reasons for his dissatisfaction with counsel.
Similarly, in Ivans, supra, 2 Cal.App.4th 1654, the defendant indicated he had articulated only some of the reasons for his Marsden motion and the trial court denied the motion without inquiring into defendant's other reasons. (Ivans, at p. 1666.) Conversely, Arellano was repeating himself when the trial court interrupted him and began addressing his complaints. Thus, unlike in Ivans, the record does not support a conclusion Arellano had unstated reasons for his Marsden motion that the trial court failed to uncover and consider.
C
Arellano alternatively contends the trial court erroneously denied his Marsden motion. We disagree.
Arellano's primary complaints about defense counsel were that she declined to call three witnesses he wanted called and failed to ask questions of prosecution witnesses, particularly Maria, he wanted asked. He was also upset defense counsel asked his teenage son not to be in the courtroom during the trial. In Arellano's view, defense counsel's actions demonstrated her dislike for him and their inability to effectively communicate.
In an effort to show his complaints were well taken, Arellano cites to portions of the record containing defense counsel's favorable assessments of two of the witnesses. These assessments occurred before the first trial. At that point, the victim was denying any sexual involvement with Arellano and the DNA testing conclusively establishing her sexual involvement with him was not completed. By the second trial, the DNA testing was completed, giving defense counsel more information upon which to evaluate the veracity and helpfulness of the witnesses' testimony.
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However, as the trial court recognized, Arellano's disagreements with defense counsel were tactical disagreements. "Tactical disagreements between the defendant and his attorney do not by themselves constitute an 'irreconcilable conflict.' 'When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant.' " (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
Moreover, during the trial, the trial court personally observed meaningful communication between Arellano and defense counsel. Defense counsel also confirmed her tactical disagreements with Arellano did not prevent her from vigorously representing him and, in fact, the record, including Arellano's acquittal of counts 1 and 2, shows she did so. Accordingly, we conclude Arellano has not demonstrated the trial court abused its discretion by denying his Marsden motion.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: HALLER, J. IRION, J.