Opinion
F060359 Super. Ct. No. 08CM2371
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEROY LONG, Defendant and Appellant.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Gomes, Acting P.J., Kane, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On May 4, 2010, appellant, David Leroy Long, was charged in a second amended information with assault with a deadly weapon by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1), count one) and corporal injury of a cohabitant resulting in traumatic injury (§ 273.5, subd. (a), count two). Counts one and two alleged great bodily injury enhancements pursuant, respectively, to sections 12022.7, subdivision (a) and 12022.7, subdivision (e). At the conclusion of a jury trial on May 7, 2010, Long was found guilty of both counts and enhancements.
Unless otherwise designated, all statutory references are to the Penal Code.
On June 7, 2010, the court sentenced Long to the midterm of three years on count two plus the midterm of four years for the great bodily injury enhancement made as to that count for a total prison term of seven years. The court stayed Long's sentence on count one. The court awarded actual custody credits of 32 days plus conduct credits of 5 days. Long contends the trial court failed to conduct an adequate inquiry of a challenge Long made during a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We disagree and will affirm the judgment.
According to the probation report, Long was in custody between May 7, 2010 and June 7, 2010. This was over six months before some types of custody credits were expanded by the Legislature through amendments to section 4019. Long would not be eligible for such credits even if they are found to apply retroactively because the jury found true the allegation that he committed a great bodily injury, a violent felony under section 667.5, subdivision (c)(8) and a serious felony under section 1192.7, subdivision (c)(8).
MARSDEN HEARING
Because the only issue on appeal concerns the adequacy of the Marsden hearing, we do not review the evidence presented at trial.
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On April 13, 2010, Long brought a Marsden motion. Long argued that the victim was found in a park in a different town while he was at work. Long wanted to introduce timecards as proof that he was in a different town when the victim claimed she was attacked. Long also wanted to introduce other evidence from the victim's stepfather and a deputy sheriff that the victim thought Long was conspiring with the stepfather to have her put away in rehab.
Long asserted this was not the first time the victim claimed someone beat her to get herself out of trouble. Long claimed the victim had two charges for driving under the influence, two charges for domestic violence, and one charge for being under the influence that were dismissed by the prosecutor. Long stated that his counsel, Mr. Gupton, said he would not bring up these incidents at trial and that was why he was bringing his Marsden motion.
When the court asked Long how the cases dismissed against the victim were relevant to Long's case, Long replied that the victim was "being left off on things" and to him, the incidents were relevant. The court noted Long was not the judge and the case law was against Long on the issue of whether these incidents were relevant in his own trial. Long said he thought Gupton would be a great lawyer but did not think Gupton had his heart in the case noting the case had been going on for two years.
Gupton responded that on the timecard issue, they could corroborate Long's testimony. Gupton explained that Long would testify with evidence contradictory to statements made in the police report and by the victim. Gupton stated his investigators had tried to talk to the deputy sheriff but had not yet made contact with him. Gupton was prepared to subpoena this witness if necessary.
Gupton told the court there were some extremely unsettling things regarding the victim, particularly in terms of similar acts, habit evidence related to accusing others of battering her, and reports that turned out to be unfounded. Gupton stated he may be able to introduce these matters if they were relevant as he "explained to Mr. Long in terms of accusing other individuals of battering her that have been, reports that have been unfounded, and those are individuals that are, in fact, included on the witness list ...." Gupton included others on the witness list who saw the victim on the morning of the alleged incident and observed no injuries to her after the incident was supposed to have happened. Gupton noted he had pretried this case to death and the case had been pursued and he was ready for trial.
Long stated he really did not have a problem with Gupton, thought he was fine, but felt left in the dark about what was going on. Gupton told the court he had explained to Long the difference between what a layman would think is relevant and what can be brought up in court. Gupton said the court indicated to Long what was actually legally relevant and admissible in court. Long reiterated his comment that he had no problems with Gupton and thought he was "doing a great job."
The court found there was insufficient evidence that Gupton was failing to do his job in preparing for trial. The court explained to Long that sometimes reputation evidence is not permitted because it unduly prejudices a witness and Gupton could raise issues by way of evidentiary hearings outside the presence of the jury to determine whether certain matters would be proper subjects of examination. The court denied the Marsden motion.
DISCUSSION
Long argues that because he asserted an important instance of his counsel's alleged inadequacy of representation, the trial court had a duty to make further inquiries of counsel to determine whether counsel's failure to act was a matter of discretion or neglect. Long also argues that his allegation of dismissed cases against the victim was potentially relevant and admissible as to the victim's bias or motive for testifying against him as well as to impeach her credibility as to the charges against him. Long contends the trial court's failure to adequately respond to his Marsden request was an abuse of discretion and violated his Sixth Amendment right to counsel.
"We review a trial court's decision declining to relieve appointed counsel under the deferential abuse of discretion standard. (People v. Silva (2001) 25 Cal.4th 345, 367; Marsden, supra, 2 Cal.3d at p. 123.)" (People v. Jones (2003) 29 Cal.4th 1229, 1245 (Jones).) When a defendant seeks to discharge his or her appointed counsel and substitute another attorney, asserting 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. A defendant is entitled to relief if the record clearly shows the original appointed attorney is not providing adequate representation or that the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Roldan (2005) 35 Cal.4th 646, 681 [overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22]; People v. Fierro (1991) 1 Cal.4th 173, 204.)
A judge abuses his or her discretion if the judge "denies a motion for substitution of attorneys solely on the basis of his [or her] courtroom observations, despite a defendant's offer to relate specific instances of misconduct," or makes a decision "without giving a party an opportunity to present argument or evidence ...." (Marsden, supra, 2 Cal.3d at p. 124; Jones, supra, 29 Cal.4th at p. 1244.)
The relevant conduct and events prompting a defendant's request for new counsel may not be apparent to the judge from observations made in the courtroom. (Marsden, supra, 2 Cal.3d at p. 123.) The critical inquiry ordinarily relates to matters outside the trial record, e.g., whether the defendant had a defense that was not presented, whether counsel adequately investigated the facts, and whether the omissions charged to counsel resulted from inadequate preparation as opposed to a choice of trial tactics and strategy. (Id. at pp. 123-124.) "When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate." (People v. Webster (1991) 54 Cal.3d 411, 435.)
Additionally, under certain circumstances, the court must inquire of defense counsel for an explanation of apparently incompetent acts or admissions. But this obligation arises only when specific important instances of the alleged inadequacy of representation are raised. Thus, in People v. Turner (1992) 7 Cal.App.4th 1214 (Turner),we explained:
"Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney. [Citation.] For example, in People v. [Groce] (1971) 18 Cal.App.3d 292, at page 297, the court held when a defendant asserts 'specific important instances of alleged inadequacy of [counsel's] representation' such as failure to secure potentially exonerating evidence, the court cannot deny a Marsden motion without inquiry into counsel's reason for not introducing the evidence. But, this court held in People v. Penrod (1980) 112 Cal.App.3d 738, 747, inquiry into the attorney's state of mind is required only in those situations in which a satisfactory explanation for counsel's conduct toward his client is necessary to determine whether counsel can provide adequate representation. Further, that a defendant disagrees with the trial preparation and strategy adopted by his appointed counsel does not trigger any duty of inquiry by the trial court. (Id. at p. 748.)" (Turner, supra, 7 Cal.App.4th at p. 1219, second bracketed insertion added.)
In Groce, the defendant, charged with assault with a knife, complained that the victim was not in fact injured, but that counsel had not called the doctor who treated the victim or subpoenaed the hospital records that might have established the absence of an injury. (People v. Groce, supra, 18 Cal.App.3d at pp. 295, 297.) The court held that the trial judge had a duty to ask counsel for an explanation because the defendant "directed the court's attention to specific important instances of alleged inadequacy of his representation, i.e., the existence or nonexistence of stab wounds and other pertinent evidence that could have been established by hospital records." (Id. at pp. 296-297.)
Long argues his case is factually analogous to Groce because the trial court here did not address Gupton on his "refusal" to cross-examine the victim on cases that were allegedly dismissed in exchange for her testimony against Long. Long further argues that the court "categorically rejected" the issue raised by him without knowing the facts of the case.
We do not agree with this depiction of the Marsden hearing. Long represented to the court that it was his understanding the prosecutor had dismissed two charges for driving under the influence, one charge for being under the influence, and two charges in which the victim allegedly committed domestic violence. The court then explained to Long it would decide what evidence would be relevant and admissible concerning the victim. The court explained that case law did not favor Long's view of the relevance of the dismissed allegations against the victim.
The court was aware of the nature of what Long asserted were the dismissed allegations against the victim. So was Gupton. Gupton told the court there were some extremely unsettling things regarding the victim, particularly in terms of similar acts, habit evidence related to accusing others of battering her, and reports that have turned out to be unfounded. Gupton told the court he discussed with Long the possibility of introducing relevant matters, including witnesses of prior unfounded allegations by the victim. Those individuals were included in the witness list as well as others who saw the victim on the morning of the alleged incident and observed no injuries to her at the time the incident was supposed to have occurred.
Gupton told the court he had pretried the case to death, the case had been pursued, and he was ready for trial. Gupton told the court he had explained to Long the difference between what a layman would think is relevant and what can be brought up in court. Gupton said the court also explained to Long what was actually legally relevant and admissible in court.
We find this colloquy between Gupton and the court shows that Gupton was well aware of any dismissed allegations against the victim and had tried to explain to Long what relevant evidence he could pursue in cross-examining the victim. Gupton explained to the court the victim's troubling past including prior allegations, apparently unfounded, of being battered. This was not, as Long argues in his reply brief, a "refusal" by Gupton to cross-examine the victim. It is clear that both the trial court and defense counsel understood, and explored with Long, the victim's past history and whether any part of that history was relevant at trial as part of Long's defense. Factually, this case is completely inapposite to Groce where there was no indication that defense counsel had done any discovery concerning the victim's medical records and injuries.
Having determined defense counsel's decision to reject the defendant's strategy was a matter of informed decision and not neglect, the court was under no obligation to pursue the matter further with defense counsel. (People v. Barnett (1998) 17 Cal.4th 1044, 1095.) The trial court was not faced with a record here evidencing a breakdown of the attorney-client relationship over trial tactics. (Ibid.) Here, there was substantial evidence that counsel had investigated the possibility of pursuing Long's suggested strategy but declined to do so after determining it would not be successful. (Id. at p. 1096.)
In Turner, we found the trial court had a duty to inquire into defense counsel's state of mind only where a satisfactory explanation for counsel's conduct is necessary to determine whether the defendant is receiving adequate representation. (Turner, supra, 7 Cal.App.4th at p. 1219.) The trial court's inquiry here was adequate and defense counsel had a clear understanding of whether he could, or could not, impeach the victim at trial with the dismissed criminal allegations. The Marsden hearing was more than adequate to permit Long the opportunity to assert his perceived deficiencies in Gupton's representation. Long failed to demonstrated Marsden error.
DISPOSITION
The judgment is affirmed.