Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. BF117736A, Gary T. Friedman, Judge.
Kyle Gee, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
PROCEDURAL HISTORY
On August 25, 2008, appellant Richard Ray Feliz was convicted of the 1994 murder of Shiloh Rodriguez. (Pen. Code, § 187, subd. (a).) The jury also found that Feliz had used a dangerous weapon in the commission of the offense. (§ 12022, subd. (b)(1).)
All further references are to the Penal Code unless otherwise noted.
Although Feliz initially was arrested as a suspect at the time of the murder, he was not charged until much later in January 2007 after DNA evidence tied him to the murder. Feliz’s first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict. After the conviction in the second trial, the trial court sentenced Feliz to a term of 25 years to life, plus one year for the dangerous-weapon enhancement. Credit of 654 days was awarded for time served with no good-time/work-time credit awarded pursuant to the limit imposed by section 2933.2.
FACTUAL SUMMARY
In 1994, Feliz had a girlfriend named Darlene Vasquez. Although the couple did not live together, Feliz was “always” at Vasquez’s apartment. Feliz was extremely jealous of Vasquez. The morning of the murder, November 4, 1994, Feliz accused Vasquez of wanting to be with Shiloh Rodriguez. Shiloh Rodriguez and his older brother Chris Rodriguez were friends with Feliz and spent time together.
We will refer to the victim and his brother by first names to distinguish between the two.
On the evening of November 4, Feliz, Shiloh, and two others, spent the evening together drinking beer. Later, the group dispersed. About 8:30 p.m., Chris received a phone call from Shiloh who sounded distressed, asking Chris to come pick him up at Feliz’s mother’s house as soon as possible. Chris was unable to do so. This was the last time Chris spoke with Shiloh.
On November 4, 1994, between 11:30 p.m. and midnight, Shiloh’s body was found at the Union Cemetery in Bakersfield. He had been stabbed 77 times. The weapon used was a single-edged blade approximately five to five-and-a-half inches in length.
The physical evidence at the scene included a blood trail running from the body to the southeast and a number of shoe tracks. Feliz’s mother’s house was located several blocks southeast of the cemetery. The shoe tracks found at the cemetery were similar to the tread pattern made by Feliz’s shoes. Vasquez testified at trial that, the morning after the murder, she saw Feliz clean his shoes in the bathroom with bleach. Despite this effort, the shoes tested positive for human blood. The forensic criminalist testified that the DNA sample extracted from the shoe was consistent with DNA that had been exposed to bleach.
During the initial investigation, Vasquez claimed that Feliz was with her the entire evening. Later, she changed her testimony and stated that the night of the murder, Feliz wakened her. He said “[L]ook, bitch, look what you did, you made me kill my best friend.” Feliz also said, “anybody that was to mess with what belonged to him was gonna be handled.” He accused Vasquez of “fucking” Shiloh and called Vasquez a “lying bitch” when she denied it. Vasquez heard Feliz say he had lost his knife.
Feliz returned to the room about 30-45 minutes later. The two talked until they went to sleep. The next day, Vasquez saw Feliz and her brother Armondo Ramos, who had been at the apartment when Feliz returned the night before, kick dirt over a pile of burnt clothing in a field located behind Vasquez’s apartment. Ramos would later tell police that Feliz had admitted killing Shiloh and that he had seen Feliz burn clothes behind the apartment the night of the murder. At trial, Ramos claimed he remembered nothing. Before the first trial, however, Ramos told police his life had been threatened repeatedly and that he was terrified. He told police he would not say anything if called to testify.
The investigating officers found the pile of burned clothes and a burned towel behind Vasquez’s apartment. Vasquez testified at trial that she recognized in the pile the clothes Feliz had been wearing when he came home and a towel from the bathroom. Later tests on the clothing showed the presence of human blood matching Shiloh’s DNA pattern.
DISCUSSION
I. Admission of Vasquez’s phone calls
At trial, Vasquez was allowed to testify, over defense counsel’s objection, that she had made two anonymous calls to an unnamed detective in 1994, later identified by the parties as Detective Legg, in which Vasquez said that she had information about the murder. The first time she left a message on the detective’s answering machine. The second time, she claims she actually spoke with the detective. She testified that she did not identify herself, but told the detective where Feliz lived and the name of the victim. Vasquez said she had more information so long as the police could keep Feliz away from her. These statements were obviously inconsistent with her initial statement to police that Feliz was with her all night. She said she lied initially to protect Feliz. The trial court admitted this testimony on the ground that, although hearsay, it was admissible as a prior consistent statement for the limited purpose of impeaching the witness. Feliz argues this was error. We agree, but conclude there is no prejudice.
Any out-of-court statement made by a testifying witness, offered to prove the truth of the matter asserted, is inadmissible hearsay unless the statement falls within one of the recognized statutory or judicial exceptions to the hearsay rule. (Evid. Code, § 1200, subd. (a); People v. Thornton (2007) 41 Cal.4th 391, 429.) Evidence Code sections 791 and 1236 are the exceptions at issue here. These sections provide that a prior consistent statement is admissible as an exception to the hearsay rule if it is (1) offered after an inconsistent statement used to attack the witness’s credibility is admitted and the consistent statement was made before the inconsistent statement; or (2) when there is an express or implied charge that the witness’s testimony was recently fabricated or influenced by bias or improper motive, and the statement was made before the fabrication, bias, or improper motive. (Evid. Code, §§ 791, 1236.)
The trial court apparently concluded that the statements made during the phone calls were admissible under section 791, subdivision (a). This conclusion, however, was incorrect because Vasquez’s prior consistent statement (the phone call evidence) was not made before her alleged inconsistent statement (the alibi evidence). The exception created by subdivision (a) requires that the prior consistent statement be made before the alleged inconsistent statement in order for the exception to apply. (§ 791, subd. (a); People v. Kennedy (2005) 36 Cal.4th 595, 614; People v. Ainsworth (1988) 45 Cal.3d 984, 1014.)
We also have reviewed the entire record, the evidence, and the arguments of counsel, and conclude the defense never implied that Vasquez’s statements were a recent fabrication or that they were motivated by subsequent events that generated a bias or improper motive for Vasquez to change her story. Further, there was no suggestion by the defense that some intervening event was the reason for Vasquez’s change of testimony. Consequently, we also agree with Feliz that the phone call evidence is not admissible under section 791, subdivision (b).
In People v. Duvall (1968) 262 Cal.App.2d 417, 421, the defense during cross-examination suggested that two codefendants had been permitted to plead guilty to possession of a sawed-off shotgun pursuant to a deal with the district attorney. As a result, the defense argued that the codefendants had a motive to lie and implicate Duval. The court concluded that the defense argument entitled the prosecution to show that the two codefendants had actually implicated the defendant even before the deal was negotiated.
Similarly, in People v. Bolin (1998) 18 Cal.4th 297, 321, the court concluded that the prior consistent statement was admissible because the defense had suggested that the declarant’s trial testimony implicating the defendant was fabricated in order to avoid murder charges which had been filed against the declarant. Statements by the declarant consistent with his trial testimony and made before the murder charges were brought against him were admissible to disprove the defense contention that the murder charges provided the declarant with a motive to lie. (See also People v. Bunyard (1988) 45 Cal.3d 1189, 1209 [defense impliedly charged that testimony was influenced by motive to avoid prison term; defendant’s prior consistent statements were properly admitted pursuant to Evid. Code, § 791, subd. (b)].)
In this case, the defense was not suggesting that Vasquez was untruthful at trial. Vasquez testified that she broke up with Feliz in 1995, after she made the alibi statement and placed the phone calls to Detective Legg. Therefore, the prior consistent statement cannot be used to suggest that the breakup was the reason Vasquez changed her story at trial—she already had changed her story before the breakup occurred.
In addition, Feliz’s alleged infidelity did not provide a motive for Vasquez to change her testimony. By her own admission, Vasquez knew about the infidelity before she provided Feliz with an alibi. Consequently, both her inconsistent statement and her consistent statements came after she knew about his infidelity. (See People v. Crew (2003) 31 Cal.4th 822, 843 [when evaluating admissibility of prior consistent statements, focus is on specific agreement or other inducement suggested by cross-examination as supporting witness’s improper motive]; People v. Ainsworth, supra, 45 Cal.3d at p. 1014 [under Evid. Code, § 791, subd. (b), party seeking to introduce prior consistent statement must show statement was made before bias, motive for fabrication, or other improper motive, is alleged to have arisen].)
The prior-consistent-statement rule is designed to allow a party to disprove an allegation that something happened between two inconsistent statements to cause the witness to lie at trial. It does not allow a party to use prior consistent out-of-court statements to bolster the witness’s credibility in the absence of a claim that there has been a recent fabrication or influence by an improper bias or motive. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2009) ¶ 8:1354, p. 8D-87.) The facts of this case fall outside the parameters of the rule and the statement should not have been admitted.
Although the trial court erred in admitting the prior consistent statement, we conclude there is no prejudice. There was ample proof of guilt independent of Vasquez’s testimony, including the pile of burned clothing behind Vasquez’s apartment that tested positive for human blood matching Shiloh’s DNA and the blood found on Feliz’s shoes which were similar in tread pattern to the shoe tracks found at the scene of the murder. There was testimony from several witnesses putting Shiloh with Feliz earlier in the evening. In addition, Ramos told police that Feliz came home with blood on his clothes.
Vasquez was cross-examined at both trials regarding the changes in her story and the inconsistencies in her testimony at the first and second trials. There was a stipulation at trial that Detective Legg had no record or memory of the alleged anonymous phone calls. Consequently, Vasquez’s credibility was well framed for the jury. The jury was instructed that the phone call evidence could only be considered for the limited purpose of determining whether Vasquez was telling the truth and not for the truth of the statements themselves. We will presume that the jury followed the court’s instruction. (People v. Lindberg (2008) 45 Cal.4th 1, 26.)
For all these reasons, we conclude that any error in admitting the out-of-court statements made during the two anonymous phone calls did not result in prejudice to Feliz.
II. Alleged Marsden error
Feliz next contends that the trial court erred in denying his postverdict motion for new counsel. According to Feliz, the trial court was obligated to inquire further into the reasons why Feliz was dissatisfied with his attorney. We reject this contention as well.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden) imposes four requirements on the trial court. First, if a “defendant complains about the adequacy of appointed counsel,” the trial court has the duty to “permit [him] to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance.” (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) A defendant is entitled to relief only if he can show inadequate representation or that the attorney-client relationship has irreparably broken down. (People v. Smith (1993) 6 Cal.4th 684, 696; People v. Crandell (1988) 46 Cal.3d 833, 854.) Further, new counsel should not be appointed without the proper showing. Whether the proper showing has been made is reviewed for an abuse of discretion. (People v. Smith, supra, at p. 696.)
Feliz sent a letter to the trial court postconviction complaining that “some man from probation” had come to interview him. He also told the court that there had been “foul doings” and “a lot of purjury” in his trial. He made vague references to needing school records and trial transcripts (which he later admitted he had received). As a result of this letter, on the date set for imposition of judgment, the trial court conducted a Marsden hearing.
The court began by asking Feliz about the nature of the complaints. They included (1) not having his prison records; (2) not having Vasquez’s school records; (3) not subpoenaing Vasquez’s mother; (4) the failure to include all buildings on a sketch that represented Vasquez’s apartment complex; (5) the failure to emphasize inconsistencies in the testimony between the first and second trials; (6) the lack of an opportunity to cross-examine Detective Legg; (7) the failure to elicit evidence about the way police controlled individuals waiting for interviews when more than one individual was waiting; and (8) the failure to point out that Ramos received a deal for cooperating with police. The court methodically went through each of Feliz’s complaints to make sure it understood what Feliz was claiming. When the court needed help in understanding a complaint, the court asked counsel for help. In a few instances, the court asked for counsel’s response.
Feliz’s letter and his comments at the Marsden hearing were expressions of dissatisfaction with the trial and its result. At no time did Feliz ask, directly or indirectly, to have new counsel appointed or to have his present counsel removed. When a defendant does not request substitute counsel, it is not necessary under Marsden to determine the factual basis of defendant’s claim of inadequate representation. (People v. Gay (1990) 221 Cal.App.3d 1065, 1070.)
Next, we disagree that the trial court inadequately investigated Feliz’s claims. Feliz cites People v. Cruz (1978) 83 Cal.App.3d 308, 315-316, in which the appellate court said that a trial court’s mere listening to a defendant’s reasons for claiming inadequate counsel is not sufficient under Marsden when the circumstances require that the trial court conduct a careful inquiry into the defendant’s reasons for requesting substitution of counsel. (People v. Cruz, supra, at pp. 317-318.) The key language here is “when the circumstances require.”
In Cruz, there were circumstances requiring further inquiry by the court. The trial court in Cruz listened to the defendant, without interruption, as the defendant explained why he had decided to represent himself. The defendant listed a series of concerns about the public defender’s pretrial representation, generally raising allegations of significant misconduct but offering no factual support for his allegations. The trial court did not inquire about specific facts underlying the concerns, nor did it ask the public defender for a response. This was error because the trial court ruled without fully understanding whether the allegations of misconduct were true. If true, representation was inadequate and new counsel should have been appointed rather than allowing the defendant to represent himself. Likewise in People v. Munoz (1974) 41 Cal.App.3d 62, another case relied upon by Feliz, the trial court refused to inquire into the defendant’s claim that his representation was inadequate. (Id. at pp. 64-65.) In both cases, the trial court allowed the defendant to speak, but made no attempt to determine whether there was any substance to the claims made even though the circumstances warranted further inquiry.
In contrast, the court here made a number of inquiries to clarify Feliz’s statements and sought specific responses from counsel on a number of occasions. Feliz was given ample opportunity to offer specific grounds to justify substitution of counsel, but with few exceptions, nothing Feliz said warranted further inquiry. For example, when Feliz claimed that a witness had not been located, the court clarified who the witness was (Vasquez’s mother) and asked counsel if the witness had been on the witness list. She was not. The mother had been present on the night of the murder. Defense counsel told the court that he was “having a little problem remembering what happened with [the mother] … —I had a report from an investigator and I do not recall locating [the mother].” Whether or not the mother was called as a witness, counsel tried to locate her and received input about her availability before trial. Feliz made no showing in the trial court that the witness had helpful information. The other two people in the apartment did not offer testimony that would benefit Feliz. As a result, Feliz did not and cannot show that counsel’s failure to call the witness resulted in inadequate representation.
When Feliz claimed that Detective Legg had not been called to testify, defense counsel explained that Legg had been located in San Diego and that Legg said he did not have any recollection of receiving phone calls from Vasquez. This evidence did come in via a stipulation at trial; it was favorable to Feliz.
Another complaint raised by Feliz was that counsel failed to present evidence about how police investigators handle people waiting to be interviewed, either as suspects or witnesses. According to Vasquez, Feliz yelled to her, “please don’t do this” while she was waiting to be interviewed, which is why she said Feliz had been with her all night. Feliz said that, although defense counsel in the first trial had gotten “just a description of the room,” it would “have probably been better if we would have got the process of it.…” Defense counsel explained that he presented this evidence when he read extensive testimony from the record of the first trial, establishing that witnesses would not be allowed to yell to others waiting to be interviewed. This response indirectly informed the court that defense counsel did have copies of the transcripts from the first trial since they were used to read the prior testimony into the record at the close of the second trial.
Although the trial court appeared to have forgotten there had been a first trial, our review of the record suggests this was a momentary lapse. The record is full of references to the first trial.
Feliz argued there was no evidence that Ramos had a deal from the prosecution. Yet, defense counsel explained that evidence had been submitted regarding the case where Ramos allegedly received favorable treatment. Other claims made by Feliz could be discounted by the trial court without input from counsel. Feliz argued that transcripts from the first trial could have been used to impeach the testimony of witnesses. The discrepancies noted by Feliz, however, were either insignificant because they were only tangentially relevant to the issues at trial (such as how long Feliz and Vasquez had known one another) or involved issues collateral to the issue of guilt (e.g., how far the blood trail led from the cemetery, 50 or 200 yards). Defense counsel did impeach Vasquez on the issue of whether she actually saw Feliz use bleach to clean his shoes. He did such a thorough job that Vasquez ultimately admitted she had not seen Feliz actually use the bleach to clean his shoes.
Finally, even if the trial court abused its discretion in denying the Marsden motion, Feliz has failed to show how he was harmed by the denial. In reviewing Marsden errors, an appellant is not entitled to relief without a showing of prejudice. (People v. Chavez (1980) 26 Cal.3d 334, 348-349.) Feliz’s list of complaints was insufficient to show that his right to counsel would be substantially impaired without a substitution of counsel at his sentencing hearing.
III. Credit issues
Feliz’s final claim has merit. He contends that the trial court erred when it limited the number of custody credits earned in accordance with section 2933.2 because the section had not yet been enacted at the time of the murder. The section provides that any person convicted of murder “shall not accrue any [good-time/work-time] credit [under section 2933].” (§ 2933.2, subd. (a), added by Stats. 1996, ch. 598, § 3.) The statute states that it is to “only apply to murder that is committed on or after the date on which this section becomes operative.” (§ 2933.2, subd. (d).)
Respondent concedes error, but argues that the number of good-time/work-time credits is limited by section 2933.1, which provides that, “[n]otwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” (§ 2933.1, subd. (a).) This section was in effect at the time of the murder, and murder is one of the enumerated felonies listed in section 667.5, subdivision (c). (Stats. 1994, ch. 713, § 1, eff. Sept. 21, 1994.) Feliz agrees that section 2933.1 limits the number of credits he is entitled to receive. We order that the trial court prepare a corrected abstract awarding the appropriate number of credits.
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded to enable the trial court to recalculate the number of good-time/work-time credits earned and to prepare an amended abstract of judgment awarding Feliz the number of credits he is entitled to as limited by section 2933.1. Copies of the amended abstract shall be distributed to the appropriate authorities.
WE CONCUR: Cornell, J., Gomes, J.