Opinion
G046657
05-22-2013
THE PEOPLE, Plaintiff and Respondent, v. JENNIFER ALICE DELLARUSSO, Defendant and Appellant.
Kevin Smith, 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, Anthony Da Silva and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .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. 10WF2385)
OPINION
Appeal from a judgment of the Superior Court of Orange County, John Nho Trong Nguyen, Judge. Affirmed.
Kevin Smith, 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, Anthony Da Silva and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Jennifer Alice Dellarusso of felony vandalism with a finding the damage exceeded $400. She admitted serving a prior prison term (Pen. Code, § 667.5, subd. (b)) and the trial court sentenced her to 3 years in prison, but directed she serve 6 months in county jail and the remainder of the term on mandatory supervision. She appeals claiming the trial court erred by (1) denying a motion to discharge appointed counsel (People v. Marsden (1970) 2 Cal.3d 118; Marsden motion), and (2) ruling the prosecution could impeach a potential defense witness with evidence of the conduct underlying a pending drug trafficking criminal charge. Finding no error, we affirm the judgment.
FACTS
Around 2:00 a.m., police officers received a dispatch reporting people spray painting at a Boys and Girls Club. Arriving officers stopped and arrested two persons, Dean Castillo and Rochelle Erb.
The officers also saw defendant running along a line of trees that separated the club from a park. Officer Christopher Garcia ordered defendant to stop, but she changed direction and kept running. Eventually, she complied with Garcia's demand. Upon stopping, defendant dropped a blue backpack. On her hands, defendant wore latex gloves stained with what appeared to be fresh red paint. Inside the backpack, Garcia found 10 spray paint cans, including 2 of red paint that had been recently used.
At the police station, defendant waived her rights and agreed to speak with Garcia. She admitted "hanging out" with Castillo and Erb, but denied wearing latex gloves. When asked why she had a backpack containing cans of spray paint, defendant "said something along the lines [of], I wanted to tag, but I didn't vandalize anything." On cross-examination, Garcia acknowledged the dispatch report referred to two people, one male and one female, dressed in black and using spray paint.
Officer Gordon Downing, the officer in charge of the investigation, walked around the club's soccer field, discovering fresh red paint on a wall and a discarded latex glove similar to those worn by defendant. Another latex glove was later discovered on Erb. Downing testified dispatch reported "several subjects" spray painting at the club. On cross-examination, he described the backpack as black in color.
The club spent over $900 to repair the damage.
Defendant testified she, along with her teenage son and a friend named Jimmy, went to the park adjacent to the club that night to play with a glow-in-the-dark Frisbee. She claimed she was wearing a blue sweatshirt and blue jeans. Defendant admitted Castillo and Erb had been at her home earlier in the evening, but denied accompanying them to the club or seeing them until after the police arrested her.
While at the park, defendant claimed she spoke with two people named Sean and Dylan. After they left, defendant found a backpack containing cans of spray paint. She assumed Sean and Dylan left the backpack. She picked up the backpack and some of the cans fell out of it. Defendant replaced the cans, but noticed some of them lacked caps and were covered in red paint. She used latex gloves she found inside the backpack to pick up the cans. After taking possession of the backpack, defendant saw the spotlight from a police helicopter and heard a lot of commotion. Acknowledging her prior criminal record, defendant testified she started running because she "knew the situation." Defendant denied spraying graffiti or seeing anyone doing so. She conceded telling Garcia that she was tagging, but claimed she used a sarcastic tone of voice.
DISCUSSION
1. Denial of Defendant's Marsden Motion
a. Background
Downing was the prosecution's second witness and the first police officer to testify. After Downing completed his testimony, defendant asked to speak with the trial judge. Her attorney explained defendant "would like to raise issues with the court that could be construed as a Marsden type of motion . . . ." (Italics added.) Excusing the prosecutor, the trial court conducted a hearing on defendant's request.
Defendant complained defense counsel's cross-examination of Downing "didn't . . . advance anything for my case," insisting that "on more than ten occasions" Downing's testimony differed from the statements contained in his police report. Defense counsel acknowledged "what [Downing] said in court is not what he had in his report, more than ten times." Defendant then continued, "[t]hat's a major concern for my case. The jury is not getting an adequate description of exactly what went down to a make a fair decision on my behalf."
Commenting on defense counsel's "great reputation for being an excellent lawyer," the trial judge concluded, "I cannot say that there is any deficiency, in my view, in his performance. You have the knowledge of whatever you have told me, but I cannot comment on his strategy. The lawyer has to have the right to use his skills and his knowledge of the facts, the law and to conduct the trial in whatever way he deems best to defend you."
While acknowledging defendant "did not ask . . . to have your lawyer removed from the case," the judge "deem[ed]" defendant was asking him to do so and, "[b]ased on what I see in this trial so far," denied the motion.
b. Analysis
Defendant contends the trial court failed to conduct a proper Marsden hearing. She argues it held a perfunctory hearing and failed to probe into the details of the purported discrepancies between Downing's report and his trial testimony. We find no error.
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion [citation]—the trial court must permit the defendant to 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 representation is likely to result. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 604.)
Contrary to defendant's claim, the trial court did not commit any procedural error in conducting the Marsden hearing. Where "'the critical factual inquiry . . . relates to matters outside the trial record . . . rather than from unwise choice of trial tactics and strategy[,]' . . . a judge who denies a motion for substitution of attorney[] solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney." (People v. Marsden, supra, 2 Cal.3d at pp. 123-124.) However, "'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 . . . .' [Citation.]" (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.)
Here, the court allowed defendant to explain her concerns about her attorney's representation. Her sole complaint focused on defense counsel's cross-examination of Downing. She claimed counsel had not brought out many of the discrepancies between Downing's testimony and the details contained in his arrest report. Counsel acknowledged defendant was correct, as a factual matter, in noting the numerous discrepancies between Downing's testimony and his report. Thus, there was no need for the court to conduct a further inquiry on the basis of defendant's complaint about defense counsel's actions. (People v. Valdez (2004) 32 Cal.4th 73, 95-96 ["trial court conducted a sufficient inquiry during" Marsden hearing where "[t]he record demonstrates that the court provided defendant with ample opportunity to detail his concerns and state the grounds for his motion" and "[a]fter hearing defendant's complaints, . . . allowed counsel to respond"].)
As the court's comments reflect, defendant's objection concerned defense counsel's trial strategy. "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.' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
The Attorney General suggests defense counsel did have a tactical purpose in the manner he questioned Downing. During closing argument, counsel used Downing's erroneous description of the backpack's color, plus discrepancies between his testimony and that of other witnesses, to discredit his testimony: "[Downing] wanted so badly for [defendant] to be one of the people dressed all in black, that he said she had a black backpack. Take a look at the picture [of the backpack]. It was important to him, apparently, that she be arrested and prosecuted, I guess. But it wasn't so." Focusing on these discrepancies when cross-examining Downing would have afforded the officer or the prosecutor the opportunity to explain the differences or clear them up.
Nor did the court err in complimenting defense counsel. In a case where the "defendant's dissatisfaction with . . . counsel was based . . . on matters that occurred within the courtroom, . . . [a] trial court [that] ha[s] personally observed defense counsel's conduct, . . . could properly comment on the quality of [counsel's] performance." (People v. Hines (1997) 15 Cal.4th 997, 1026.) Defendant's attempt to rely on similar comments during her sentencing hearing is also unavailing. Events occurring "after the trial court ha[s] denied defendant's Marsden motion . . . cannot be used to undermine the trial court's exercise of discretion in denying the motion." (People v. Abilez (2007) 41 Cal.4th 472, 489.)
"The trial court afforded defendant ample opportunity to set forth her complaints regarding counsel's representation, and after hearing defendant's complaints the trial court allowed counsel to respond. The trial court was not required to do more." (People v. Alfaro, supra, 41 Cal.4th at p. 1320.) We find the trial court did not abuse its discretion in denying defendant's Marsden motion.
2. Impeachment of Castillo
a. Background
After the prosecution rested its case-in-chief, defendant's attorney advised the court he intended to call Castillo as a witness, but he had been notified the prosecutor intended "to impeach this witness . . . with conduct which apparently forms the basis of a" pending criminal charge. The prosecutor confirmed defense counsel's statements. Defense counsel sought a hearing on "whether or not that's going to be permissible . . . ." Castillo's attorney was also present and declared if the court found that evidence of his client's conduct underlying the pending charge was "admissible and will allow the People to impeach" Castillo with it, "my client would be invoking his Fifth Amendment privilege."
The trial court ruled the prosecution could use this evidence to impeach Castillo. It noted a witness's "character is always central to the issue whether his testimony is true or not . . . ." Applying Evidence Code section 352, the court found there would be "no confusion" or undue consumption of time. As for prejudice, the court ruled, "My concern is whether there is undue prejudice to the defendant. I don't see that in this case. This is about the witness['s] character, not about the defendant. And even if there[] is some prejudice against the defendant, it has to be substantial . . . or undue prejudice, which I do not find to be present in this case."
As a consequence, the defense did not call Castillo as a witness.
b. Analysis
Defendant contends the trial court erred in ruling that if Castillo testified, the prosecution could impeach him with evidence of the conduct underlying his pending drug trafficking charge. She argues the ruling was prejudicial because Castillo "was her corroborating witness, who already had pleaded guilty to the same crime and who could have explained the actual circumstances of the vandalism," and "[i]n his absence, [she] . . . became the only witness in her defense."
The first issue is the Attorney General's claim defendant waived this issue by failing to timely object to the court's ruling at trial. We conclude the issue has been preserved for appeal.
Evidence Code section 353, subdivision (a) requires "[t]here appear[] of record an objection to or a motion to exclude or to strike . . . evidence that was timely made and so stated as to make clear the specific ground of the objection or motion" before a judgment can be reversed "by reason of the erroneous admission of evidence . . . ." Cases have recognized "[t]he statute does not require any particular form of objection" (People v. Partida (2005) 37 Cal.4th 428, 434-435), but merely requires an objection "'alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the [proponent] an opportunity to establish its admissibility.' [Citation.] What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling." (Id. at p. 435.)
Defendant's request for a ruling on the admissibility of Castillo's drug trafficking conduct as impeachment was in the nature of a motion in limine. Under these circumstances an evidentiary objection can be preserved for appeal where "(1) a specific legal ground for exclusion was advanced through an in limine motion and subsequently raised on appeal; (2) the in limine motion was directed to a particular, identifiable body of evidence; and (3) the in limine motion was made at a time, either before or during trial, when the trial judge could determine the evidentiary question in its appropriate context. [Citations.]" (People v. Whisenhunt (2008) 44 Cal.4th 174, 210.)
That is the case here. After the People rested, defense counsel informed the court of his intent to call Castillo as a witness and of the prosecutor's declared intent to impeach Castillo with evidence of his conduct underlying the pending drug trafficking charge, a circumstance verified by the prosecutor. Castillo's own attorney acknowledged the court's ruling on the admissibility of this evidence was crucial to whether Castillo would assert his privilege against self-incrimination. Furthermore, the trial judge's comments reflect not only that he understood the issue, but he gave a full explanation of the reasons he considered the impeachment evidence admissible. Nothing further was required to preserve the issue for appeal.
On the merits, we conclude the trial court properly exercised its discretion in finding the proffered impeachment evidence admissible. "A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 931, fn. omitted.) In deciding whether to admit such evidence for impeachment, "the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify. [Citations.] Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude. [Citation.] As we have advised, 'courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.' [Citation.]" (Id. at pp. 931-932.)
"The first factor goes to admissibility of the prior [criminal conduct] . . . . [Citations.]" (People v. Green (1995) 34 Cal.App.4th 165, 182.) It is not disputed Castillo's conduct underlying the pending drug charge constituted moral turpitude. Cases have held "[c]rimes related to [drug] trafficking involve moral turpitude. [Citations.]" (People v. Gabriel (2012) 206 Cal.App.4th 450, 459.) The crime of possessing drugs for sale involves moral turpitude because it reflects "the intent to corrupt others" (People v. Castro (1985) 38 Cal.3d 301, 317, fn. omitted) and thus "a readiness to do evil" (People v. Gabriel, supra, 206 Cal.App.4th at p. 459 [holding "[t]he trial court did not err in permitting [the] defendant's impeachment with his prior conviction of" cultivating marijuana]).
But defendant nonetheless claims the trial court erred in finding Evidence Code section 352 did not preclude use of this evidence for impeachment. We disagree. The record shows the trial court expressly considered and rejected each of the possible grounds for excluding the evidence under the statute. It found admission of Castillo's drug trafficking conduct would not consume too much time or cause confusion for the jury, nor was there any indication of proof problems concerning it.
On the question of undue prejudice, the trial court noted evidence of the conduct underlying the drug charge was relevant to assist the jury in determining whether to believe Castillo's purported testimony in this case. Since the drug charge was then pending, clearly his actions were not too remote in time. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925 ["convictions . . . characterized as remote . . . generally lessen their probative value"].) Nor was evidence Castillo's drug trafficking conduct excludable because it was too similar to defendant's felony vandalism charge. (Id. at p. 926.)
Defendant asserts Castillo had been charged with vandalizing the club and pleaded guilty to that charge. She argues, since felony vandalism also constitutes a crime of moral turpitude (People v. Campbell (1994) 23 Cal.App.4th 1488, 1493), "evidence of Castillo's participation in a crime of moral turpitude . . . inevitably would have come before the jury anyway," thereby making use of his pending drug charge for impeachment "cumulative and unnecessary . . . ." Defendant fails to provide any record establishing Castillo had entered a guilty plea to vandalizing the club. But even if so, and further assuming the trial court did not find it too similar to the present charge to admit it for impeachment, that would not preclude use of his conduct underlying the pending drug charge to impeach him. "[A]s this court has recognized, a series of crimes may be more probative of credibility than a single crime. [Citations.] '"[W]hether or not more than one prior felony should be admitted is simply one of the factors which must be weighed against the danger of prejudice. [Citation.]"' [Citation.]" (People v. Clark, supra, 52 Cal.4th at pp. 932-933; see also People v. Mendoza, supra, 78 Cal.App.4th at p. 927 ["impeachment . . . with only one or two priors would have given [witness] a 'false aura of veracity' because it would suggest that [he] has led a generally legally blameless life"].)
The only significant support for defendant's abuse of discretion claim is that the trial court's ruling did lead Castillo to assert his Fifth Amendment privilege against self-incrimination. Defendant argues "Castillo's testimony was crucial to [her] case" and thus the ruling deprived her of the right to present a defense. Not so. As the prosecutor noted in his rebuttal argument defendant could have called at least four other persons to corroborate her version of the events; her son, his friend Jimmy, Sean, and Dylan. And contrary to defendant's suggestion, the prosecutor did not take advantage of the court's ruling during rebuttal. As the Attorney General notes, when arguing defendant failed to call logical witnesses to support her case, he specifically referred to those individuals.
"Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion [citations]." (People v. Clark, supra, 52 Cal.4th at p. 932.) The trial court properly exercised its discretion in finding Castillo could be impeached with evidence of conduct underlying his pending drug trafficking charge.
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.