Opinion
A144063
08-29-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM LLOYD NELSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1402184)
This is an appeal from judgment after a jury convicted defendant William Lloyd Nelson of attempted murder of a peace officer engaged in the performance of duty. Defendant challenges the trial court's refusal to hold a hearing in accordance with People v. Marsden (1970) 2 Cal.3d 118 (Marsden) on his motion for substitution of appointed counsel, and failure to rule on his de facto motion for new trial. Defendant also seeks in camera review by this court of the record lodged with the trial court in connection with a motion he made under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to compel the prosecution to produce certain internal police records relating to complaints against the deputy sheriff who was the victim of his crime. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 16, 2014, a criminal information was filed charging defendant with attempted premeditated murder of a peace officer engaged in the performance of duty in violation of Penal Code sections 664, subdivision (e) and 187, subdivision (a), enhanced for intentionally discharging a handgun during the course of the offense within the meaning of Penal Code section 12022.53, subdivision (c).
Unless otherwise stated, all statutory citations herein are to the Penal Code.
Trial began in December 2014, during which the following evidence was presented. Defendant resided at 115 Kelley Road in an unincorporated section of Humboldt County. On May 6, 2014, Sheriff's Sergeant Kenny Swithenbank and his partner, Deputy Bang Cao visited this residence to serve papers on defendant in a civil matter. Swithenbank, believing defendant held a grudge against him, warned his colleagues the situation could be volatile, and alerted dispatch to clear the radio for emergency traffic only. Swithenbank described defendant as hostile and likely heavily armed.
Prior to trial, defense counsel made a Pitchess motion pursuant to Evidence Code section 1043, as well as three Marsden motions, each of which was denied.
Upon their arrival at defendant's residence, the officers inspected a truck parked off a dirt road, next to the property before approaching the house via a gate. Swithenbank, knocking loudly on the side of the house, told defendant to come outside to speak with them. Although Swithenbank could see a man's face through the window, no one came outside, so he instructed Deputy Cao to knock again. At this point, Swithenbank thought he heard a door click, prompting him to warn Cao: "This is not good." After stepping around the side of the house to see whether anyone had come outside, Swithenbank heard a glass door open. He also heard defendant yell: "What do you want to talk about?" After Swithenbank did not reply, defendant told him to "Get the fuck off my property."
Just as Swithenbank warned Cao to watch defendant's hands, the officers heard shots fired and, thus, returned fire (multiple times). Cao heard the sliding glass door open and, looking towards the sound, saw defendant's head. At this point, Cao noticed defendant was pointing a gun at him and felt a "poke" in this chest. Realizing he had been shot, Cao drew his weapon and returned fire before tripping over something and falling to the ground. After a while, the gunfire stopped and the officers retreated behind a retaining wall, where Cao reloaded his weapon. The officers then ran through the yard back to their patrol vehicle, where they called for backup and Swithenbank reloaded his weapon.
It was later determined that Cao had a bullet lodged in the body armor he was wearing under his uniform. Cao's armor prevented the bullet from entering his body, although the impact from the bullet did create a wound in his chest.
On December 15, 2014, the jury found defendant guilty of attempted murder, found true the special allegations that he committed the offense with knowledge the victim was a peace officer engaged in the performance of duty and that he intentionally discharged a firearm. The jury made no finding as to premeditation, and the allegation was subsequently stricken by the court.
On January 15, 2015, the trial court imposed on defendant an indeterminate life sentence with the possibility of parole, with a consecutive 20-year sentence for intentionally discharging a firearm in the course of the crime (§ 12022.53, subd. (c)). Defendant filed a timely notice of appeal on the same day.
DISCUSSION
Defendant raises the following issues for our review. First, defendant contends the trial court violated his constitutional right to effective assistance from counsel by failing to hold a Marsden hearing after he requested substitute counsel at the outset of the sentencing hearing. Second, defendant contends the trial court further violated his constitutional rights to counsel and due process by failing to hold a hearing after he "essentially moved the court for a new trial," also at the outset of the sentencing hearing. Finally, defendant requests that this court conduct an independent in camera review with respect to his motion under Pitchess for discovery of internal police records relating to complaints, if any, against the victim, Deputy Cao. We address each issue in turn below. I. Summary Denial of Defendant's Post-Trial Marsden Motion.
Defendant first contends the trial court, in denying his Marsden motion without holding a hearing, violated his Sixth Amendment right to effective assistance from counsel under the United States Constitution.
As defendant correctly notes, "criminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel." (People v. Marsden (1970) 2 Cal.3d 118, 123 [Marsden], citing Gideon v. Wainwright (1963) 372 U.S. 335.) "[S]ubstitute counsel should be appointed when ... necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]." (People v. Smith (1993) 6 Cal.4th 684, 696.)
"[T]he standard expressed in Marsden and its progeny applies equally preconviction and postconviction. . . . A defendant has no greater right to substitute counsel at the later stage than the earlier. . . . [¶] . . . [¶] It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged, but that is a difference of degree, not kind." (People v. Smith (1993) 6 Cal.4th 684, 694-695.)
Whether to hold a hearing before ruling on a defendant's Marsden motion is likewise a matter left to the court's discretion. As the California Supreme Court has explained, "a trial court must conduct . . . a Marsden hearing only when there is at least some clear indication by the defendant, either personally or through counsel, that the defendant wants a substitute attorney." (People v. Sanchez (2011) 53 Cal.4th 80, 84 [italics added]; accord People v. Mendoza (2000) 24 Cal.4th 130, 157 [although no formal Marsden motion is required, there must at least be some "clear indication by defendant that he wants a substitute attorney"].) Moreover, even where a trial court abuses its discretion in denying a Marsden motion without a hearing, reversal is not required so long as the record shows the court's error harmless beyond a reasonable doubt. (People v. Chavez (1980) 26 Cal.3d 334, 348-349.) Or, put otherwise, " ' "appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would 'substantially impair' the defendant's right to effective assistance of counsel." [Citation.]' " (People v. Abilez (2007) 41 Cal.4th 472, 488.) Illustrating this rule, "[in] Marsden, [the California Supreme Court] held it was error to deny the defendant the opportunity to explain the basis for his claim because a trial court that 'denies a motion for substitution of attorneys solely on the basis of [its] courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of [its] discretion to determine the competency of the attorney.' [Citation.] [The court] found the error prejudicial in Marsden because, in that case, [it] could not 'conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant's conviction.' " (People v. Sanchez, supra, 53 Cal.4th at p. 87, quoting Marsden, supra, 2 Cal.3d at pp. 124, 126.)
In our case, as mentioned above, defendant made three Marsden motions prior to and during trial seeking substitution of counsel, each of which was denied by the trial court after a hearing. These rulings are not subject to challenge on appeal. Defendant then made a fourth such motion, albeit without labeling it as such, at the start of his sentencing hearing, which the court denied, this time without a hearing. It is this ruling that defendant contends ran afoul of his constitutional right to effective assistance of counsel.
To properly review defendant's challenge, we find it helpful to set forth in full his statement(s) to the court in connection with his Marsden motion, despite its length. Specifically, the relevant exchange between defendant, counsel and the court was as follows: [Defense Counsel:] I am prepared to [proceed to sentencing]. My client has informed me that he would like to postpone it and also give a statement to the Court. I don't know necessarily the ground that's I [sic] heard - I don't know if the Court wants to hear from him. [THE COURT:] Okay. Mr. Nelson, your attorney has indicated that you wish to postpone sentencing? [THE DEFENDANT:] Yes, ma'am, because I discovered some evidence that will prove that they elicited perjured testimony and Fulton over here was lying about some of the evidence that he supposedly found and I've discovered this evidence since the trial. And they've been in control of it the whole time and I wanted to make a statement about it. [THE COURT:] Okay. Well, you're entitled during the sentencing to make a statement. Usually, it's supposed to be done under oath in terms of allocation and the like. But, certainly, you are entitled to make a statement. [¶] Your attorney has already filed a motion asking the Court to modify the verdict and I've considered everything relative to that and denied that. There was no motion for a new trial submitted here or anything like that. [¶] So, the fact - the trial has occurred. The evidence of course, is in the record and you will have the right to appeal your conviction if you believe that the evidence does not support the conviction. That's what the Court of Appeal is there for. [¶] So I'm not sure the basis for continuing this matter, if there is any good cause for doing that at this time. [THE DEFENDANT:] My attorney never came to see me about that. He never came to see me about the motion he filed. He hasn't talked to me about a damn thing. [¶] There is evidence. It's hard evidence. It's in the past discovery and my attorney never investigated it. He doesn't even know about it. I mean I told him about it and he blew it off. So, they went along with their little trial any ways. [¶] Could I read this and just explain myself? [THE COURT:] Well, I'm - not yet, to the extent the Court will allow you, during sentencing, to address the Court and if you have something to read during the sentencing, but I don't hear any basis to continue the sentencing at this time. I mean, you will be allowed to address the Court. If you feel that the evidence does not support your conviction, then that's what the appellate process is about. [¶] I'm prepared to proceed and I think - the victim in this matter, is he present. [PROSECUTOR:] He's not. [THE COURT:] He won't be addressing the Court? [PROSECUTOR:] No. [THE COURT]: Do you have a position? [¶] And Counsel, you are prepared to proceed Is that correct? [DEFENSE COUNSEL:] Yes, but all of these issues have not only been addressed, looked into. So there's nothing more I can do and I've explained that to him by phone. My investigator has been in twice to talk about these issues and has looked into the issues. [THE DEFENDANT:] That's not true. [THE COURT:] Okay. Well, I'm prepared to proceed, Mr. Nelson, we'll go ahead and proceed and, as I've indicated you do have remedies under the law relative to appeals and the like. [¶] So in this matter, is arraignment for the judgment and sentence waived? [PROSECUTOR:] Yes, your Honor."
At this point, the trial court recited the jury's verdict and asked whether there was any legal cause why judgment should not be pronounced. Defendant responded affirmatively and, at the court's prompting, explained that his attorney "is not representing me" and that he had tried to fire him three previous times. The court rejected defendant's showing of "legal cause" to delay pronouncement of the judgment, confirmed the motion to modify the verdict (§ 1181, subd. (6)) filed by his attorney had been denied, and stated the indicated sentence. The court then provided the parties, including defendant, another opportunity to speak. Defendant responded with another lengthy statement, reiterating that he had not received a fair trial because, among other things, key evidence was suppressed and perjured testimony was solicited by the prosecution. He also reiterated that he had received ineffective assistance from counsel because, among other things, his attorney had failed to ask important questions of prosecution witnesses. After again hearing from defendant, the trial court noted that many of his comments related to the credibility of witnesses at trial, a matter reserved for the jury. The court further noted that other of defendant's comments related to issues not relevant to the charges against him, including his relationship with his child and the child's mother. As such, the trial court confirmed the time had come to proceed with sentencing.
Defendant's second statement to the trial court at the sentencing hearing was as follows: "[DEFENDANT:] I stand here before this court today deemed a troubled man, that I may be sentenced for a crime that I definitely did not commit. "On May 6th, 2014, two Humboldt County sheriff's deputies tried to ambush me in my own backyard as I stood there in my underwear. "From the very beginning, law enforcement's investigation and evidence was tampered with and suppressed by them, law enforcement. "Almost every aspect of material evidence favorable to the defendant pertaining to this incident was sabotaged by counsel and the prosecution depriving Nelson of any opportunity to receive a fair trial. "I have a list of approximately 26 examples, slash items of suppressed evidence and/or known perjured testimony. Most of the items on the list are Brady violations. The prosecution deceived the jury by intentionally suppressing all of the Brady evidence and counsel sabotaged the defense by turning a blind eye to the same violations. Way too many transgressions to be considered a minor mistake. The one Brady motion defense counsel requested was a farce simply to appease the record. "Just like counsel's argument for coercion, before Greg even made his case, he told me, quote, the judge gave me the nod. That means she's not going to grant the motion, unquote. What kind of a fair trial is that? When counsel made his argument for coercion, he completely left out the aspect of the physical holocaust the defendant endured during the 18 hours prior to being interrogated. That included two large test tubes of blood drawn from Nelson's arms minutes before questioning and a veiled threat by Detective Musson about Issac, Bill's son. "It is no coincidence that every single complaint stated in the Marsden motions became a reality at trial. "And where was the ballistics weapon's expert for the defense. I've prepared a list of at least 18 crucial questions counsel should have and needed to ask our expert. By not relying on nor presenting the expert, counsel proved his incompetence regarding my defense beyond any doubt. I was denied the probative process, a denial of my due process rights. There were far too many instances for the expert to rebut the prosecution witness - witnesses to deem not presenting the defense expert as anything but neglect. "When it was time for me, the defendant to testify, counsel informed me that he did not have a single question prepared to ask me and would I make out a list. So, I hastily wrote out a list. Four pages of questions while Detective Musson was testifying so I did not get to pay attention to Musson's testimony. Then Greg asked me if the questions were in chronological order. I said no. At that point, I realized I had no choice but to not testify because counsel was not prepared. Counsel's lack of preparedness, combined with his threat that I mentioned in Marsden about me testifying, robbed me of any confidence in counsel to address the issues at hand. Counsel's lack of diligence essentially denied me of my right to testify. Greg made good on his threat to drop the ball. The jury was prejudiced by me not testifying. "To make matters worse, the prosecution elicited perjured testimony from Detective Fulton and they knew it. The following is one example of many. There were only three pieces of indicia in Nelson's truck: A new passport, a copy of an escrow record and a quitclaim deed. It is no consequence that Fulton remembered the passport but said he could not remember the rest - what was the rest of it - the rest of what it was. The escrow record, the deed, revealed Nelson was actually buying the house, had bona fide access to the house and, obviously, lived there. Acknowledging the indicia would have completely impeached Karen Benscheidt and poked a big hole in the prosecution's case. Fulton's answer was obviously coached by Kelly Neel, the deputy prosecutor. "Another example of Fulton's deceitful conduct was his recollection of the contents in the safe. Fulton remembered my old Hawaii driver's license and my old passports no problem. What he conveniently forgot to mention was that everything in the safe belonged to Nelson and nothing belonged to Karen. Some of the indicia was a patent application for one of the Bill's inventions, an automatic watering system for pets. The prosecution kept that quiet because it showed how Nelson spent his time constructively while on probation doing something good for society. Fulton was careful not to reveal that Karen did know the combination to the safe, nor did she accurately describe the contents of the safe. In fact Kelly Neel knew as she questioned Karen that all of Karen's testimony was perjured with the exception of Isaac being our son. Ms. Neel knew Detective Fulton was lying, also. The State has custodial control of the evidence. Had all of this suppressed evidence been revealed to the jury, the outcome would have been very different. Kelly Neel went out of her way to initiate and maintain a malicious prosecution that prejudiced the jury. "Had counsel been diligent with my defense, he would have called Greg Rice, the owner of Buck Sports Sporting Goods, and verified that Nelson was the purchaser of the safes. Further, he would have checked with Humboldt Land and Title to make sure the escrow records stated that Nelson put down 20,000 on the house. Katie Casaly (phon) handled the deal and Karen was also on the record and also put down 20,000. "And the record was as I described it. Had counsel checked with Umpqua Bank, he would have discovered that the bank account that the mortgage payment has been withdrawn for each month for the past 16 years with the defendant's name on it for 115 Kelley Road. Counsel could have checked out the issues - the issuances of the quitclaim deed from Charlie Benscheidt's bank in Kansas and found Nelson's name on that also. "Detective Fulton probably agreed to give the deed and escrow records back to Karen and keep quiet about it in exchange for her cooperation with perjured testimony. "Counsel was too arrogant to investigate any of the exculpatory evidence favorable to my defense just like I mentioned in the Marsden hearing. "There is a substantial amount of indicia to support my claims of fabricated evidence. There is a certain bit of material evidence that is rock solid proof that Kelly Neel, Detectives Musson and Fulton and Sergeant Swithenbank all knew that Karen's testimony was perjured. That evidence is in the past discovery from 2011 where Karen Benscheidt told Sergeant Swithenbank and Detective Shannon McGrain (phon) that she didn't own the safes, had no idea what was in the safes, didn't have anything to do with the safes, which is completely opposite of the testimony that Ms. Neel over here elicited from Karen Benscheidt. "I asked Greg to file an appeal immediately after the trial. He said he would do that. Weeks ago, I called his office and requested some form of verification that the appeal had been filed. To date, it's been one month and there has been verification nor has Greg contacted me. What assurance do I have that counsel filed the appeal? Is the appeal based on an incompetence, ineffective assistance of counsel claim or Brady violations or failure to approve - failure to provide a fair trial by fabricating evidence or initiating and maintaining a malicious prosecution, all of which he participated in? "I asked counsel to petition the Court for a retrial. I told Greg I had discovered a lot of withheld evidence. Counsel has refused to help me once again, nor will he even examine the evidence in my possession, evidence he neglected to investigate to begin with. How did I ever have a remote chance at a fair trial with my attorney/client relationship in a perpetual state of conflict of interest. "Now I'm asking the Court to postpone my sentencing and demand an investigation into my claims of prosecutorial corruption. Pending the outcome of the investigation, I would be seeking a retrial. I am also asking under these unusual circumstances that the Court, in all fairness to the defendant, temporarily appoint a different counsel while an investigation is conducted. My trial was an absolute sham. I'm asking this Court to give the defendant an opportunity to prove it."
With respect to defendant's complaint that his attorney had ignored his request that he "file an appeal immediately," the trial court explained that no appeal may be filed before the judgment and sentence is entered; rather, a defendant has 60 days from the date of judgment to file an appeal.
Defendant, however, again advised the court that he would like to make a further statement "to clarify the record," at which point he continued to insist key evidence, including crime scene photographs, had been suppressed, that prosecution witnesses had perjured themselves, and that his attorney had been ineffective. The trial court thanked defendant for his additional words and proceeded to pronounce the sentence - to wit, a sentence defendant has not challenged on appeal. Having considered this record in the context of the appellate record as a whole, we conclude the trial court did not abuse its discretion by denying defendant's fourth Marsden motion without a hearing. As the high court has explained, a Marsden hearing is conducted because "[t]he defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom." (Marsden, supra, 2 Cal.3d at p. 123.) In this case, defendant's three previous Marsden motions were rejected after hearings. The final such motion was made by defendant in open court on January 15, 2015, just over a month after the court heard and denied his third Marsden motion on December 9, 2014. Moreover, in the fourth Marsden motion, as the (sealed) record reflects, defendant raised essentially the same arguments regarding the ineffectiveness of his trial counsel that he put forth in his third Marsden motion - to wit, that his attorney had failed during trial to "effectively attack[] the credibility [of certain] witnesses" and to "ask [the witnesses] some key questions." And, even though no evidentiary hearing was held with respect to his fourth motion, defendant was fully able to state his arguments to the trial court before the ruling. As such, the trial court had an adequate opportunity to reconsider defendant's complaints about his attorney before rejecting his request for substitute counsel.
"There are way too many examples for me to go over all of them. I only make—mentioned a few. There was withheld photographs of the crime scene that show a bullet hole behind a chair that Todd Fulton lied about or whatever the hell his name is. He lied about it. He knew there was a bullet hole behind the chair and he said there wasn't. The slug in the bedroom that they say they didn't found. It was a police shooting. What kind of investigation went on there. They had custodial control. "How could they not find one slug in a bedroom if in these photographs that were withheld that Greg never put on the table. The prosecution never put on the table. Nobody ever even saw them until after the trial. I have the copies of them. They show a crime scene completely different before it got tampered with. They show the hose all coiled up that Cao tripped on. They show the yard before all the wire was strewn around in the yard. "So, there was obviously no wire for Cao to trip on. And the reason that they're keeping quiet about the bullet hole and the point of impact is because it would show that Cao lied about where he said he was shooting from. They know damn good and well he's lying. They've got to keep it quiet because of all of these police shootings that have gone on in Humboldt County and I'm the only one that survived and there's an awful lot of discrepancies for only one survivor. I wonder what all the other people would say, like Thomas McClain, if he could come back and tell his side of the story. But they're all dead, so they can't tell their side of the story. There was a substantial amount of withheld evidence that the prosecution was sitting on that they kept quiet about. And so you know I don't - I thought I would be able to approach the Court somehow and - and request an evidentiary hearing and bring all of this evidence to the court without having to waste all of the State's money and go through the whole appellate system and everything. But you know, you are the Judge, you know, and I don't' think you are aware of any of this stuff. I don't think you've seen any of it. The jury didn't see any of it. They didn't see a lick of it. So, I don't believe I got a fair trial in any way, shape or form. "And Greg here, my attorney, he can't wait to get rid of me because when all of this evidence comes up, it's gonna be like where the hell are you? So - so, you know, I guess - I guess that's about all I can say." --------
Thus, because the trial court permitted defendant to explain why he was receiving ineffective counsel and deserved substitute counsel, and because, even without a formal hearing, the trial court permitted defendant to make a by-all-means lengthy statement on the record regarding specific instances of his attorney's purported inadequacy, we conclude the court did not abuse its discretion by denying defendant's fourth Marsden motion without a hearing.
Moreover, even assuming for the sake of argument that the trial court should have conducted such a hearing, we conclude the error must be deemed harmless beyond a reasonable doubt. (Marsden, supra, 2 Cal.3d at p. 126 [applying the beyond-a-reasonable-doubt standard for determining prejudice where trial court failed to hold a hearing].) As our colleagues in Division One of this Appellate District aptly explained when rejecting similar arguments raised by the defendant on appeal: "Marsden does not establish a rule of per se reversible error. [Citation.] Defendant has made no showing here either that his Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved had the motion in fact been granted. The failure to rule on the motion did not affect [defendant's] trial in any way. The motion was made only after he had been convicted. The basis for such a motion at such a time could have been only that his attorney had acted incompetently at trial or in filing the motion for new trial [citation] or, possibly, that [he] believed that counsel would be unable to represent him properly at sentencing. The fact that no Marsden motion was entertained does not preclude [defendant] from attacking the competency of his attorney. . . . [Defendant] was ably represented and the evidence against him was nothing less than overwhelming. We cannot see how the appointment of a different attorney would have gained [him] a new trial, or could have had any effect on the sentence imposed, and we, of course, are able to review [any] claims that the sentence imposed was improper. We therefore conclude that the failure to consider the purported Marsden motion has not deprived [defendant] of any arguments or otherwise irrevocably affected the verdict or sentence. Under the circumstances, and on the record before us, we cannot see that [defendant] would have obtained a result more favorable to him had the motion been entertained." (People v. Washington (1994) 27 Cal.App.4th 940, 944.)
Much of our colleagues' discussion applies equally to our case. Indeed, here, as mentioned above, defendant chose not to challenge the sentence imposed against him, which he clearly had the right to do. Given that circumstance, any argument that new counsel could have achieved a more favorable result at the sentencing hearing had the court permitted an evidentiary hearing on defendant's fourth Marsden motion appears to ring hollow. Accordingly, we conclude reversal is not required given the lack of any showing of prejudice.
II. Denial of Defendant's De Facto Motion for New Trial.
Defendant further contends that, in addition to requesting substitute counsel, he "essentially moved the court for a new trial" when making the above-identified statement(s) at the January 15, 2015 hearing (pp. 6-8, ante), which motion the court erroneously denied without a hearing. While defendant concedes the trial court gave him a full opportunity to state his concerns for the record, he nonetheless contends the court erred by not conducting an actual evidentiary hearing before deciding whether "[his] trial was an absolute sham." We disagree.
As an initial matter, we agree that, when a defendant moves for a new trial, whether directly or through counsel, the trial court must, as a general rule, rule on it. (People v. Braxton (2004) 34 Cal.4th 798, 810; § 1202.) Moreover, failure to hold a hearing on such motion is error that requires a new trial unless the error was harmless. (Id. at pp. 817-818.) And where, as defendant claims here, "a trial court has refused to hear a defendant's new trial motion, and the appellate record is insufficient to permit a reviewing court to determine as a matter of law whether the proposed motion was meritorious, the reviewing court may remand the matter to the trial court for a belated hearing of the new trial motion, absent a showing that a fair hearing of the motion is no longer possible." (Id. at p. 819.)
"On the other hand, a judgment of conviction may not be reversed and a new trial may not be ordered for a trial court's failure to hear a new trial motion when a reviewing court has properly determined that the defendant suffered no prejudice as a result. This will occur when, for example, the record shows that the trial court would have denied the new trial motion and the reviewing court properly determines that the ruling would not have been an abuse of discretion, or the reviewing court properly determines as a matter of law that the motion lacked merit." (People v. Braxton, supra, 34 Cal.4th at pp. 818-819.)
In this case, we question whether defendant's statement at the sentencing hearing can appropriately be deemed a de facto motion for new trial, as defendant argues. Indeed, the trial court stated the opposite, noting, when advising defendant of his right to make a statement that, "Your attorney has already filed a motion asking the Court to modify the verdict and I've considered everything relative to that and denied that. There was no motion for a new trial submitted here or anything like that." Yet defendant at no time told the trial court that its statement was incorrect, or that he did in fact intend to move for a new trial. Instead, he proceeded to accept the court's invitation to provide a statement prior to sentencing. Accordingly, we conclude defendant either invited error or forfeited this issue to the extent he now argues on appeal that his statement to the court should be considered an implied motion for new trial.
As the California Supreme Court explains: "If the trial court's failure to hear or rule on the new trial motion appears to be inadvertent, the defendant must make some appropriate effort to obtain the hearing or ruling. [Citations.] ' "[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling . . . the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place." ' [Citations.] [¶] This is an application of the broader rule that a party may not challenge on appeal a procedural error or omission if the party acquiesced by failing to object or protest under circumstances indicating that the error or omission probably was inadvertent." (Cf. People v. Braxton, supra, 34 Cal.4th at pp. 813-814 ["The trial court's failure to hear defendant's new trial motion was not the result of inadvertence; it resulted instead from the court's repeatedly stated decision not to entertain any oral motion for a new trial. Defendant did all that could reasonably be expected or required under the circumstances to obtain a hearing of his new trial motion"].)
Applying these principles to the record at hand, we conclude defendant's new trial challenge provides no grounds for reversal in light of his failure to "make some appropriate effort to obtain the hearing or ruling." (People v. Braxton, supra, 34 Cal.4th at p. 813.) Indeed, the trial court did consider - before denying - the motion raised by defense counsel to modify the verdict prior to sentencing. The trial court also denied defendant's three prior Marsden motions after hearings and allowed defendant substantial latitude in expressing his concerns over his representation during what we have described above as a fourth Marsden motion. Had defendant intended to make a motion for new trial at that point, he should have made his intent more clear, particularly when the trial court stated in open court its belief that no such motion had been made. Yet as our record reflects, defendant's intent was anything but clear. Rather, he made statements during the by-all-means extensive sentencing hearing that ranged from purported conflicts with counsel, purported Brady violations by the prosecutor, and ongoing claims that his trial was a "sham"— all as a prelude to what he now identifies as a motion for new trial. Under these circumstances, we conclude defendant's belated challenge to the trial court's failure to hold a hearing to determine whether grounds exists for a new trial must also fail. (Brady v. Maryland (1963) 373 U.S. 83 (hereinafter Brady).) III. Defendant's Request for In Camera Proceedings With Respect To His Pitchess Motion.
Below, defendant moved for discovery under Evidence Code section 1043, seeking internal police records relating to complaints filed against Deputy Cao, the victim of his attempted murder. The trial court subsequently conducted an in camera review of documents produced by the prosecution in response to defendant's motion. The trial court ultimately found no discoverable material.
On appeal, defendant contends the trial court abused its discretion in so finding and, thus, asks this court to conduct its own in camera review of these documents. (See Pitchess, supra, 11 Cal.3d at p. 535 ["defendant's motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand"].) We decline this request, given defendant's failure to make any showing on appeal to support his claimed abuse of discretion. In particular, defendant has not only failed to advise this court what documents he originally requested from the prosecution, he has also failed to advise as to why such documents were being sought. (Cf. Pitchess, supra, 11 Cal.3d at p. 538 [concluding defendant made a good faith showing in support of his discovery motion where "the information which defendant seeks may have considerable significance to the preparation of his defense, and the documents have been requested with adequate specificity to preclude the possibility that defendant is engaging in a 'fishing expedition' "].)
As Pitchess itself makes clear: " 'In criminal cases, the court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest.' " (Pitchess, supra, 11 Cal.3d at p. 538.) Moreover, it is a "fundamental rule of appellate procedure" that the party challenging the ruling on appeal (here, defendant) bears the burden to prove error and, further, that where this burden is not met, no grounds exist for reversal. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 ["Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error"].) Accordingly, we reject defendant's remaining contention and affirm the judgment based upon his failure to affirmatively demonstrate error.
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.