Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F02192
BUTZ, J.A jury convicted defendant Herbert Cortez, Jr., of two counts of willful failure to register as a sex offender within five days of his January 7 birthdays in 2005 and 2006. (Pen. Code, former § 290, subd. (g)(2) [now § 290.018, subds. (b) & (c)].) Imposition of sentence was suspended and defendant was placed on formal probation for three years on conditions including service of 90 days in the county jail.
Undesignated statutory references are to the Penal Code.
On appeal, defendant makes three evidentiary claims: (1) his cross-examination of an arresting officer was erroneously limited, (2) his testimony regarding the lifelong registration requirement was erroneously limited, and (3) the conviction underlying his registration requirement was not proved beyond a reasonable doubt. He next makes three claims of instructional error: The trial court (4) omitted a limiting instruction regarding his 2001 misdemeanor conviction, (5) gave an erroneous instruction regarding registration within five days of his birthday, and (6) omitted Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 301. Defendant claims: (7) cumulative prejudice requires reversal, and (8) his requests to discharge his retained counsel and appoint counsel for post trial proceedings were erroneously denied. We shall reverse and remand for further proceedings.
FACTUAL BACKGROUND
Prosecution case-in-chief
On March 10, 2006, Sacramento Police Officer Paul Fong arrested defendant inside his residence. Fong told defendant that he was being arrested for failing to register as a sex offender. Defendant responded, “You guys know where I live. . . . I don’t see why I need to re-register.”
Four days after defendant was arrested, Karen Dickenson, a Sacramento Police Department Community Service Officer, received defendant’s arrest report. Her job was to investigate his registration history. Through her investigation, she determined that he had last registered on December 16, 2004. She confirmed that he was subject to the registration requirement and discovered that he had been convicted in 2001 of failure to comply with that requirement.
Dickenson also obtained pertinent information from a state Department of Justice (DOJ) database. The database gave defendant’s birth date as January 17, 1954, but Dickenson realized that his correct birth date is January 7, 1954. The database showed that he had registered eight times: June 23, 1999; March 14, 2000; February 14, 2001; March 22, 2001; March 4, 2002; January 17, 2003; February 23, 2004; and December 16, 2004.
Dickenson testified that a person who is convicted of a sex-related felony or misdemeanor must register pursuant to section 290. When the person is released from jail or prison, the person is required to fill out DOJ form SS-8047 and is notified that he or she must register annually. In addition, the first line of the form notifies the registrant that the requirement is for one’s lifetime. The form also provides notice that the person must register within five working days before or after his or her birthday each and every year. The registrant must initial every line of the form, sign and date it, and provide a thumbprint.
Dickenson testified that when a person registers with the police department, a clerk gives the registrant a form that he or she completes in the hallway. The registrant then returns the form to the clerk who checks the registrant’s identification and proof of residency. The registrant then returns to the hallway until a warrant check is completed. Following the record check, the registrant is returned to the office, photographed, and fingerprinted. The clerk ensures that the registrant has initialed each line and asks the registrant whether he or she understands what has been signed. Once the form is complete, the information is entered into the DOJ database that same day.
Defense
Sacramento Police Officer John Montoya testified that when he and his partner, Officer Fong, entered defendant’s apartment, he stayed near the front of the apartment while Fong went into defendant’s bedroom. When defendant and Fong emerged from the bedroom, Montoya heard defendant say, “I have lived here for years. You guys know where I live.” On cross-examination, Montoya confirmed that in his written report he had recorded the statement as, “I have been living here for years. There’s no reason for me to keep re-registering.”
Officer Fong was called to testify. He confirmed that when defendant was arrested on March 10, 2006, he stated that he did not feel he needed to register because the police knew where he lived.
Defendant testified that the two police officers came to his apartment at around 2:00 or 3:00 a.m. and one of the officers entered his bedroom and arrested him. Defendant told the officer that he did not believe he had to register.
Defendant testified that in 1998 or 1999, he was convicted of a misdemeanor. He was required to register, placed on three years’ probation, and told to obey all laws and requirements of registration. Believing he needed to register only during the probationary period, he registered in 1999 and 2000 but did not believe he had to register in 2001 because his probation had ended.
In 2001, defendant was arrested and convicted of failure to register. Following his conviction, he immediately registered and continued to register in 2002, 2003, and 2004. In 2004, an officer placed a card on his door notifying him that he had failed to register on time. Still on probation, defendant registered. However, in 2005 and 2006, defendant did not register, claiming he did not realize that it was a lifetime requirement.
Defendant admitted that each time he registered he had come to the courthouse and had been given a form to fill out. However, he claimed that although he recognized his handwriting, signature, and initials on each of the registration forms, he had not read the forms before signing and initialing them. He explained that each time he registered, the clerk told him that he had forgotten to initial the back page of the form. He would return to the hallway, quickly initial the page, and return it to the clerk.
Defendant testified that neither his attorneys nor the judges at his 1998 and 2001 sentencings had told him that he needed to register for the rest of his life. He claimed that he had not been notified of the lifetime registration requirement upon his release from custody in 2001.
DISCUSSION
I. Cross-examination of an Arresting Officer
Defendant contends the trial court violated his Sixth Amendment confrontation rights by preventing him from fully confronting and cross-examining Officer Fong regarding his recollection of the details of defendant’s arrest. We are not persuaded.
A. Background
The relevant issue was whether defendant knowingly failed to register as a sex offender pursuant to section 290 in 2005 and 2006.
At a pretrial Evidence Code section 402 hearing, both Officers Fong and Montoya testified regarding a statement defendant had made at the time of his arrest. Officer Montoya did not recollect any express reference to registration; he recalled that defendant had stated, “I’ve lived here for years. You guys know where I live.” Officer Fong, in contrast, recollected an express reference to registration. Fong first testified that defendant had stated he “didn’t need to register.” When pressed for the specific words, Fong testified defendant had stated he “didn’t understand why he needed to register. We knew where he lived. He recognized us from previous calls.” Upon objection, the last sentence was stricken.
At trial, the prosecution called Officer Fong but not Officer Montoya. Fong testified that defendant had stated, “You guys know where I live. I don’t need to--I don’t see why I need to re-register.” On cross-examination, Fong admitted that this wording was paraphrased from his “personal recollection from a year ago.” Fong admitted that, at the Evidence Code section 402 hearing the previous day, he had phrased the statement as “he didn’t need to register; you know where he lived.”
Besides confronting Officer Fong regarding the exact language of the statement, defense counsel also sought to challenge Fong regarding details of the arrest. Counsel asked Fong if he and Officer Montoya both entered the bedroom that was around a corner from the front room. After Fong answered in the affirmative, counsel asked, “So you both entered into the bedroom after turning the corner, and you could still see the three people out in the living room?” The prosecutor objected on relevance grounds, and defense counsel explained, “it goes to his credibility.” The objection was sustained.
Next, defense counsel asked Officer Fong whether, after handcuffing defendant, Officer Montoya had “led him out directly to the police car at that time.” The prosecutor objected that the question was irrelevant and exceeded the scope of direct examination; defense counsel again explained that the question “goes to his credibility.” The court sustained the objection as exceeding the scope of the direct.
At a subsequent hearing outside the jury’s presence, defense counsel argued that the officers’ ability to recall the events and details of the arrest went directly to the believability and credibility of the statements they were attributing to defendant. Counsel argued he was entitled to test the officers’ recall because, “if they can’t remember any details, then it becomes less likely” that they accurately remembered defendant’s statement but nothing else.
The trial judge agreed that he was “obligated to admit what I believe is relevant testimony,” including testimony related to issues of credibility. But the judge disagreed that defense counsel was entitled to “test credibility on the whole event. I think that unduly wastes the jury’s time bringing in issues that are outside--it was outside the scope of the direct, which was very limited. [¶] But I did allow certain questions. But I’m not going to allow 45 minutes of questioning on who was in the living room which, again, was a question that [cocounsel] raised, yet you brought a motion--let me finish. [¶] You brought a motion in limine to make sure nothing was mentioned about the other three people. That technically might have opened it up for [the prosecutor] to ask questions about the other three people. [¶] So, you know, there are issues where I allow a lot of leeway. But I’m also not going to allow questions that are far outside the scope of the direct, first of all; and second, have no real relevance to the issues in this case. [¶] Credibility is an issue, but not where it’s on issues that are far afield. And so I’m listening carefully to the questions. [¶] Also, the reason why you are being allowed to call them as your witnesses, you can test their credibility further.” (Italics added.)
The defense called Officer Fong as a defense witness. Counsel again asked Fong about the differences in his recollections of defendant’s statement at the Evidence Code section 402 hearing and in his trial testimony on behalf of the prosecution.
Defense counsel also extensively examined Officer Fong regarding his recollection of whether he, or Officer Montoya, went into the bedroom and handcuffed defendant. Fong testified, consistent with Montoya’s testimony and inconsistent with his own prior testimony, that he personally entered the bedroom and Montoya was in the hallway. Fong did not recall his testimony from the previous day that both officers had entered the bedroom.
B. Analysis
“Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, ‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.’ [Citation.] In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.” (People v. Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain), quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674, 683].)
In this case, the trial court restricted cross-examination based on undue consumption of the jury’s time, a ground stated in Evidence Code section 352. The confrontation clause did not prohibit the court from doing so. (Quartermain, supra,16 Cal.4th at p. 623.)
In any event, the excluded cross-examination would not have given the jury a significantly different impression of Officer Fong’s credibility. (Quartermain, supra,16 Cal.4th at pp. 623-624.) The unstated premise of the question whether Officer Fong could see people in the living room appears to be that it would have been difficult or impossible to see them if Officer Montoya was in the hallway in Fong’s line of sight. But Fong ultimately acknowledged that, inconsistent with his own prior testimony, Montoya was in the hallway while Fong entered the bedroom. Defense counsel obtained the impeachment that he wanted.
The question whether Officer Montoya had led the just-handcuffed defendant “directly to the police car at that time” appears to have been premised on Montoya’s testimony at the Evidence Code section 402 hearing that the officers could not take defendant to the patrol car until a third officer arrived to supervise the people remaining in the house. Defense counsel did not return to this theme when he questioned Officer Fong during the defense case. But Fong acknowledged during cross-examination by the prosecutor that his recollection may have been faulty because the case had happened several months previously and because “[t]here were numerous things going on” during the arrest, including the “three men that we had to deal with in the living room.” The excluded question would not have given the jury a significantly different impression of Officer Fong’s credibility. (Quartermain, supra, 16 Cal.4th at pp. 623-624.)
II. Exclusion of Portion of Defendant’s Testimony
Defendant contends the trial court erred in excluding testimony as hearsay. We find no prejudicial error.
A. Background
Defendant testified that, upon his conviction of a misdemeanor in 1999, he was placed on probation and told that he had to obey all laws and the requirements of registration; thus, he believed he had to register only during his probation. This exchange followed:
“[DEFENSE COUNSEL]: Did you have an attorney during this time?
“[DEFENDANT]: Yes, I did.
“[DEFENSE COUNSEL]: What did your attorney tell you about registration?
“[PROSECUTOR]: Objection, hearsay.
“[DEFENSE COUNSEL]: It’s offered for his state of mind.
“THE COURT: Objection sustained.”
B. Analysis
Defendant contends, and the Attorney General concedes, evidence of what defendant’s prior counsel may have told him about the registration requirement was offered for the non-hearsay purpose of showing defendant’s knowledge of the requirement. We accept the concession and conclude the objection should have been overruled.
Defendant claims the error was prejudicial because it “deprived the jury of crucial information about [his] knowledge.” We disagree.
Immediately before the disputed exchange, defendant had testified, “Nobody ever told me I had to be a lifetime registrant. There was never any statement to me.” The broad phrases, “Nobody ever told me” and “There was never any statement,” necessarily include the narrower assertion that his former counsel never conveyed that information. (See Civ. Code, § 3536 [“The greater contains the less”].)
On cross-examination by the prosecutor, defendant testified, “I mean, it was the way that my attorney presented it to me was that, you know, it was just a misdemeanor. And--you know, and I had to register. [¶] And I understood it to be when I was on probation. Nobody told me it would be lifetime.” Although he had previously objected, the prosecutor did nothing to impede this testimony, which again established that the former attorney had not advised defendant of any lifetime duty to register.
Because defendant was allowed to testify that no one, necessarily including his former counsel, had informed him of the lifetime registration requirement, the sustained objection to the narrow question of what former counsel had told him could not have contributed to the verdict obtained. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] (Chapman); see People v. Flood (1998) 18 Cal.4th 470, 494.) The error was harmless beyond a reasonable doubt.
III. Conviction Underlying the Registration Requirement
Defendant contends the prosecution failed to produce sufficient evidence of the conviction that underlay the registration requirement. He claims his counsel rendered ineffective assistance by making an untimely motion to dismiss (§ 1118.1) at the close of evidence rather than at the close of the prosecution case. Neither claim has merit.
The heading of part III of defendant’s opening brief incorrectly states: “Defense counsel rendered ineffective assistance during trial by making an untimely motion to dismiss at the close of the prosecution’s case-in-chief.” His argument is that the motion should have been made at the close of the prosecution case-in-chief, when no defense evidence would have been available to defeat the motion.
“‘To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.’” (People v. Carpenter (1997) 15 Cal.4th 312, 387 (Carpenter), quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)
Defendant’s contention is based in part on People v. Yarborough (1998) 65 Cal.App.4th 1417, which noted that the defendant’s “prior conviction for child molestation is an element of his subsequent offense of failing to register as a sex offender pursuant to section 290, former subdivision (g)(3).” (Id. at p. 1420.) Defendant also relies on People v. Cajina (2005) 127 Cal.App.4th 929, which observed, “A critical element of section 290 is conviction of an enumerated sex offense; there can be no violation of this statute absent sex offender status.” (Id. at p. 933.) Neither case suggests the present evidence was insufficient.
The appellate record includes this exchange between the prosecutor and witness Karen Dickenson:
“[DICKENSON]: Next I ran [defendant’s] criminal history because even with somebody being in VCIN [the Violent Crime Information Network], we still need to show the underlying sex offense that created the [section] 290 status. [¶] And so I have to confirm that through the criminal history to show that he is required to register.
“[PROSECUTOR]: Okay. And you did determine that he was required to register; is that correct?
“[DICKENSON]: Correct.” (Italics added.)
The jurors could reasonably deduce that, in order to “determine” that defendant was “required to register” as a sex offender, Dickenson had “confirm[ed]” through his “criminal history” that he had an “underlying sex offense that created the [section] 290 status.” (Carpenter, supra, 15 Cal.4th at p. 387.)
Nothing in Yarborough or Cajina suggests that Dickenson’s testimony was insufficient to prove the underlying offense. Although the prior offense is “an element” of the present case, there is no suggestion that each element of the prior offense must be set forth in the present evidence. Although the prior sex offense must be “enumerated” in section 290, there is no requirement that it be enumerated or identified with particularity in the present case.
A timely section 1118.1 motion challenging the sufficiency of this evidence at the close of the prosecution case would have lacked merit. Defendant’s trial counsel was not ineffective for having failed to make a meritless motion. (People v. Stratton (1988) 205 Cal.App.3d 87, 97.)
IV. Omission of Limiting Instruction Re: Defendant’s 2001 Misdemeanor Conviction
Defendant contends the trial court should have instructed the jury sua sponte that his 2001 misdemeanor conviction of failure to register could be considered only as evidence of his state of mind and could not be considered as evidence of his predisposition to not register. In the alternative, he claims his trial counsel rendered ineffective assistance by failing to request such an instruction. Neither claim has merit.
“‘[I]n general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.’ (People v. Collie (1981) 30 Cal.3d 43, 64; see also People v. Valentine (1986) 42 Cal.3d 170, 182, fn. 7 [‘where the fact of a prior conviction is admitted solely to establish ex-felon status as an element of violation of section 12021, the trial court, at defendant’s request, should give an instruction limiting the jury’s consideration of the prior to that single purpose’ (italics added)]; Evid. Code, § 355.” (People v. Griggs (2003) 110 Cal.App.4th 1137, 1139.) Defendant acknowledges that this is the general rule.
Recognizing that his trial counsel failed to request a limiting instruction, defendant claims the court had a sua sponte duty based upon the “narrow exception” our Supreme Court has recognized for the “occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” (People v. Collie (1981) 30 Cal.3d 43, 64, italics added (Collie).)
This is not that extraordinary case. Defendant’s previous misdemeanor conviction of failing to register as a sex offender was an element of the present felony offense. (Former § 290, subd. (g)(2) [now § 290.018, subds. (b) & (c)].) Another element was defendant’s knowledge of the registration requirement. Evidence of the 2001 prior conviction was relevant to two legitimate purposes, in that it served to prove both elements. Collie recognized that “[e]vidence of past offenses may not improperly affect the jury’s deliberations if . . . the evidence is obviously used to effect one or more of the many legitimate purposes for which it can be introduced.” (Collie, supra, 30 Cal.3d at p. 64.) Here, the evidence served two legitimate purposes, was briefly presented, and was not a “dominant part” of the evidence against defendant. (Ibid.) There was no sua sponte duty to give the limiting instruction.
“Nor was counsel ineffective in failing to request the instruction. Counsel may well not have desired the court to emphasize the evidence, especially since it was obvious for what purpose[s] it was being admitted.” (People v. Freeman (1994) 8 Cal.4th 450, 495.)
V. Instruction on Registration Requirement
Defendant contends the jury was erroneously instructed that the offenses occurred on or about January 13, 2005 and January 13, 2006, which dates were five days--but not five working days--beyond his birthday, January 7. We are not persuaded.
CALCRIM No. 1170 told the jury that the People must prove, among other things, “defendant actually knew he had a duty to register as a sex offender under Penal Code section 290 within five working days of his birthday wherever he resided” (italics added), and “defendant willfully failed to annually update his registration as a sex offender with the police chief of that city within five working days of his birthday” (italics added).
CALCRIM No. 207 told the jury: “It is alleged that the crime in count one occurred on or about January 13, 2005, and the crime in count two occurred on or about January 13, 2006. The People are not required to prove that the crime took place exactly on that day, but only that it happened reasonably close to that day.”
In 2005 defendant’s birthday, January 7, was on a Friday. The five working days following his birthday were Monday, January 10, through Friday, January 14. Thus, the offense occurred upon the close of business on January 14. Because the instruction did not require the People to prove the offense occurred on January 13, but only that it happened reasonably close to that date, evidence that the crime occurred the very next day was sufficient to satisfy the jury instruction.
We granted defendant’s motion to take judicial notice of calendars for January 2005 and January 2006. (Evid. Code, §§ 452, subds. (g) & (h), 459, subd. (a); Cal. Rules of Court, rule 8.54(c).)
We reject defendant’s unsupported argument that neither offense occurred until the start of the next business day, the following Monday.
In 2006 defendant’s birthday, January 7, was on a Saturday. The five working days following his birthday were Monday, January 9, through Friday, January 13. Thus, the offense occurred upon the close of business on the pleaded date, January 13.
Defendant speculates that the jurors could have interpreted the “reasonably close” instruction to mean that “he was guilty of the charged offense even if he failed to register before that date [January 13],” such as “one or two days after his birthday.” In effect, he claims the jurors could have set their own shorter deadline for registration, rather than adhering to the five-working-day deadline set forth in the instruction. It is not reasonably likely that the jurors understood the instruction in that bizarre manner. (E.g., People v. Clair (1992) 2 Cal.4th 629, 663; People v. Kelly (1992) 1 Cal.4th 495, 525-526.) Even if they did, any error is harmless beyond a reasonable doubt, because defendant never registered after 2004. (Chapman, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].)
VI. Omission of CALCRIM No. 301
Defendant contends, and the Attorney General concedes, the trial court had a sua sponte duty to give the jury a cautionary single-witness instruction. (People v. Turner (1990) 50 Cal.3d 668, 697, fn. 14; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.) The relevant instruction, CALCRIM No. 301, was withdrawn at an unreported instructions conference.
CALCRIM No. 301 would have told the jury: “[Except for the testimony of _________________ , which requires supporting evidence,] (the/The) testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.”
The trial court noted that 18 instructions would be given, and three instructions, including CALCRIM No. 301, had been withdrawn, as a result of “discussions and agreements” with counsel.
Defendant claims omission of the instruction was prejudicial because he was the only witness who testified that his failure to register was due to his ignorance of the registration requirement. He reasons the instruction would have “leveled the playing field” between the prosecution and the defense.
The Attorney General counters that much of the essential material in CALCRIM No. 301 was covered by other instructions. Thus, CALCRIM No. 302 told the jury it should “not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses.” This instruction also informed the jury that “[w]hat is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.” CALCRIM No. 226 told the jury, “[t]he testimony of each witness must be judged by the same standards.” Together, CALCRIM Nos. 226 and 302 at least imply that the testimony of a single witness can prove any fact.
The record demonstrates that the jury was willing to find facts that had been testified to by just one witness. The prosecution case consisted of two witnesses, Officer Fong and Karen Dickenson. Fong testified to facts surrounding defendant’s arrest but did not focus on facts gleaned from government records. Conversely, Dickenson testified to facts she had obtained from government records but did not claim knowledge of the arrest at which she had not been present. Thus, most facts essential to the prosecution case were established by just one witness. Had the jury believed such proof to be insufficient, it could not have convicted defendant of either offense.
VII. Cumulative Error
Defendant contends he was prejudiced by “numerous, cumulative errors occurring during trial.” We disagree.
In part II, ante, we concluded the prosecutor’s hearsay objection was erroneously sustained. The error was harmless because the excluded evidence was admitted through other questions.
In part VI, ante, we concluded the jury should have been instructed with CALCRIM No. 301. The error was harmless because the jury’s verdict necessarily implied that it accepted facts testified to by only a single witness.
Neither of these errors compounds or builds upon the other. Defendant’s other claims of error have been rejected. His claim of cumulative prejudice has no merit.
VIII. Discharge and Appointment of Counsel
Defendant contends remand is required because the trial court erred in denying his requests to discharge his retained counsel and to appoint new counsel for posttrial proceedings. We agree.
A. Background
After the jury returned its verdict, defendant’s retained counsel requested that the sentencing hearing be set two weeks hence, which would give him “enough time to determine whether or not a new trial motion would be appropriate.” When that hearing commenced, counsel represented that defendant wished to file a new trial motion based on ineffective assistance of counsel; specifically, that retained counsel failed to present available evidence at trial. Counsel asserted that defendant could not afford to retain substitute counsel for the motion and suggested that a panel attorney be appointed to evaluate whether there was merit to an ineffective assistance claim.
The trial court stated that, based upon its observations, cocounsel had done “a superb job” for defendant and there was no basis for an ineffective assistance claim. In response to the court’s request for an offer of proof of ineffective assistance, counsel explained that he had decided not to present evidence of the particular and careful manner in which defendant had completed yet another registration form following his arrest in this case. Defendant believed the evidence would have bolstered his claim that he had not read the registration forms until after he was arrested. Counsel opined that this evidence “would have been enough to convince some jurors” that “what happened was exactly as he testified.” Counsel added that, if the court did not wish to appoint an attorney, he would submit a new trial motion arguing, among other things, his own ineffective assistance.
The trial court ruled that the ineffective assistance claim lacked merit, in that the new document “would have made absolutely no difference to the outcome of this case.” The court granted counsel one week to file a new trial motion on other grounds he had suggested.
When the sentencing hearing resumed, retained counsel explained that he had decided not to file a new trial motion. However, that same date defendant had written a letter asserting that the “representation” counsel had provided had been “seriously inadequate.” After detailing defendant’s concerns, the letter stated “either a mistrial or a new and impartial trial should be granted, with adequate representation. Either the court can grant one or the other.”
The trial judge stated that the letter contained “a number of what I find to be misunderstandings, particularly of the law, and misstatements which need to be corrected.” The court reiterated that retained counsel had done a “superb job, given what he had to work with.” After reviewing the letter, the court found no “merit in the claim of inadequate representation of counsel,” and found “no legal cause not to proceed with sentencing.”
B. Analysis
The Sixth Amendment right to counsel entitles both indigent and nonindigent defendants to discharge retained counsel. (People v. Ortiz (1990) 51 Cal.3d 975, 982-987 (Ortiz).) “[W]hen a criminal defendant makes a timely motion to discharge his retained attorney he should not be required to demonstrate the latter’s incompetence . . . .” (Id. at p. 979.) However, “[t]he trial court, in its discretion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice.’” (Id. at p. 983.) The Ortiz standard applies to discharge motions made after conviction, but before sentencing. (People v. Munoz (2006) 138 Cal.App.4th 860, 863 (Munoz).) Where discharge is erroneously denied, the judgment is reversed and the case proceeds anew from the point defendant originally sought to discharge his attorney and obtain appointed counsel. (Id. at p. 871.)
With a slight adjustment of the cast of characters, Munoz is closely analogous to this case. In Munoz and the present case, the issue of substitute counsel arose at the same time--following trial and before pronouncement of sentence--and for the same purpose--the making of a new trial motion. (Munoz, supra, 138 Cal.App.4th at p. 864.) There, the defendant raised the issue by letter nine days before he was to be sentenced (ibid.); here, retained counsel raised the issue orally at the outset of the judgment and sentencing hearing. In each case, the issue was timely raised, and in each case the trial court resolved it by concluding that ineffective assistance had not been shown. (Id. at p. 865.)
The Attorney General seeks to distinguish Munoz by noting that, in contrast to the clear and explicit letter penned by the defendant in that case, defendant’s letter in the present case offered “no clear indication” that he “desired to discharge his current counsel prior to proceeding with sentencing.” But even before that letter was written, defendant’s retained counsel had clearly indicated that substitute counsel should be appointed for the new trial motion. Any lack of clarity in defendant’s ensuing letter was irrelevant.
The Attorney General does not suggest the request for substitute counsel was improper for the other reasons recognized in Ortiz, supra, 51 Cal.3d at pages 982-987. There is no suggestion that defendant would have been prejudiced, or that the common practice of appointment of substitute counsel for a new trial motion somehow disrupts the orderly progression of a criminal trial.
DISPOSITION
The trial court’s ruling denying defendant’s request to relieve his retained counsel is reversed and the matter is remanded to allow defendant to discharge his retained attorney. This requires a reversal of the judgment, but it does not require an automatic retrial. Once new counsel is appointed, the case shall proceed anew from the point defendant originally sought to discharge his attorney. (Munoz, supra, 138 Cal.App.4th at p. 871.)
We concur: BLEASE , Acting P. J., NICHOLSON , J.
Former section 290, subdivision (g)(2) was redesignated as section 290.018, subdivisions (b) and (c) in 2007 (Stats. 2007, ch. 579, § 26, eff. Oct. 13, 2007). Further references to section 290 are to the versions in effect at the times relevant to defendant’s failure to register on January 13, 2005 (Stats. 2004, chs. 429, 731, 761, § 1.3, eff. Jan. 1, 2005 [count one]) and/or January 13, 2006 (Stats. 2005, chs. 704, § 1, 722, § 3.5, eff. Oct. 7, 2005 [count two]).
If a trial court is under a duty to instruct sua sponte other than it did, invited error will be found only where there is an express tactical choice by defense counsel for the deviation from the duty. (People v. Duncan (1991) 53 Cal.3d 955, 969.) Here, no such choice was expressed on the record; thus, the invited error doctrine does not apply.