P. v. Johnson
Filed 6/25/13 P. v. Johnson CA1/2
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
>
THE PEOPLE, Plaintiff and Respondent, v. KENNETH DWAYNE JOHNSON, Defendant and Appellant. | A132653 (Contra Costa County Super. Ct. No. 51007640) |
Defendant Kenneth Dwayne Johnson
appeals from a judgment of conviction for resisting an executive officer and
three misdemeanor batteries, for
which he received probation, subject to certain terms and conditions. He argues the judgment must be reversed
because he was deprived of his rights to
effective assistance of counsel and to present a defense, and because the
trial court abused its discretion in denying his various Marsden motions. We affirm
the judgment.
In
a July 2009 complaint, the
County District Attorney alleged that earlier that same month, defendant
had committed two felony counts of assault by force likely to produce great
bodily injury (Pen. Code,
§ 245, subd. (a)(1)),
name="_ftnref1" title="">[1]
two counts of misdemeanor battery (§§ 242/243, subd. (a)), resisting an
executive officer (§ 69), and refusing to give specimens, samples or print
impressions (§ 298.1, subd. (a)).
Defendant
pled not guilty to all counts. Deputy
Public Defender Ilean Baltodano was appointed to represent him, did so for
about 10 months, and later was reappointed to represent him at trial. At the center of this appeal are defendant’s
contentions that Baltodano did not provide adequate representation because she
acted repeatedly to delay his preliminary hearing and trial, and refused to
investigate and advocate an involuntary intoxication defense, against his
wishes. He filed five motions pursuant
to People v. Marsden (1970) 2 Cal.3d 118 (Marsden)
that were denied, and retained private counsel and represented himself briefly
before Baltodano represented him at trial.
Hearing Continuances
The
court repeatedly continued defendant’s preliminary hearing from August 2009
until its occurrence in July 2010.
Defendant asserted below that he did not waive his right to a timely
hearing, but the record indicates otherwise.
On August 11, 2009, the court stated to him, “you have the right by law
to have a preliminary hearing within
10 days of your not-guilty plea. And the
right to have it [con]cluded within 60 days of that not guilty plea. You are now going beyond that time. Is that agreeable [with] you?†Defendant said, “Yes.†The court continued his hearing until October
2009.
The
court granted continuances in October and December 2009, with counsel’s
agreement, for unstated reasons.
Baltodano acknowledged defendant’s waiver of a speedy preliminary
hearing. In February 2010, the court
granted another continuance because Baltodano was in a continuing jury trial.
In
March 2010, the prosecutor filed a written motion, supported by an affidavit
from the prosecutor, requesting a continuance because a material witness, an
investigating officer, was on medical
leave. Baltodano, while
acknowledging defendant’s time waiver, opposed the request because defendant
would incur a bail renewal fee if the case was not completed by June 2010. The court granted the continuance.
On
April 27, 2010, the prosecutor orally requested a brief continuance because,
she stated, a primary witness was ill and another investigating officer was on
paternity leave. Baltodano opposed it
because of defendant’s costs to come to court repeatedly, and because he would
soon incur an additional $7,000 bail fee.
The court granted a continuance to May 5, 2010. Baltodano said that at the next hearing she
would move to reduce or eliminate bail, which had been set at $71,000 after
defendant’s arrest.
First Marsden Motion
At
the May 5 hearing, Baltodano told the court she could not appear for
defendant’s preliminary hearing for two days because of a work conflict and
thereafter both she and the prosecutor were assigned to a four-week homicide
trial. She said defendant had requested
another attorney take over the case, but that this was not possible in her
office.
Defendant
then made his first Marsden motion. He argued his right to a speedy trial was
being violated, he had not waived his right to a speedy preliminary hearing,
and Baltodano was not prepared to proceed with his case because of work
conflicts. The court, Judge Steven K.
Austin presiding, deferred ruling on the motion until May 12 so it could review
the transcript to determine if defendant had waived time.
On
May 12, 2010, the parties appeared before the court, Judge John H. Sugiyama
presiding. Defendant indicated he wanted
to make a motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). In the ensuing
discussion, the court indicated its understanding that another judge had denied
defendant’s Marsden motion. When it sought “further assurance as to what
was discussed†in the Marsden hearing,
Baltodano said Judge Austin had reviewed the transcript earlier that day, found
defendant had waived time, and said there was no basis for the
indicates that the Marsden motion was
denied.
The
court indicated to defendant that it would allow him to represent himself. In the course of the May 12 hearing,
defendant submitted the necessary paperwork, and the court conducted a hearing
and granted his Faretta motion. The preliminary hearing was continued so that
defendant would be able to prepare for it, and the parties ordered to return
the following week to set a date for the hearing.
Retains Other Counsel, Then Represents Himself
Also
in May 2010, before the parties proceeded to a preliminary hearing, the
district attorney added by amended complaint one count for inflicting corporal
injury upon a spouse, cohabitant or child’s parent (§ 273.5, subd. (a)) and
another for making criminal threats (§ 422).
Defendant, who had retained private counsel, personally waived his right
to a speedy preliminary hearing. In June
2010, the court granted the prosecutor’s request to increase bail to $171,000,
and defendant was remanded into custody.
In
July 2010, defendant’s preliminary hearing was held. The court ordered defendant held to answer
the charges asserted and the People then filed an information charging
defendant with resisting an executive officer, inflicting corporal injury on a
spouse, cohabitant, or child’s parent, and four counts of misdemeanor battery,
to which defendant pled not guilty.
name="_ftnref2" title="">[2] Despite his counsel’s request that defendant
be released on his own recognizance, he remained in custody.
In
August 2010, at the beginning of a hearing on defendant’s bail motion, his
privately retained counsel asked permission to withdraw, to which defendant
agreed. Counsel asserted that defendant
had an “attitude and ideas about the case†that made “it difficult for any
attorney to work with him.†The court
granted counsel’s motion, as well as defendant’s second Faretta motion to represent himself. It also reduced bail to $57,000, which
defendant subsequently posted, obtaining his release from custody.
Defendant
sought to have a blood sample that police had obtained from him shortly after
his arrest tested for drugs. The court
granted him multiple trial continuances so he could do so. When defendant informed the court that the
lab would only deal with counsel, the court appointed as a liaison advisory
counsel from the conflicts panel after the public defender’s office declined to
accept this limited appointment.
Second Marsden Motion
Near
trial, defendant sought appointment of counsel from the conflicts panel, once
again expressing his dissatisfaction with Baltodano. The court said it must appoint the public
defender’s office, unless that office had a conflict. Defendant said he would continue to represent
himself. He then made a second
not consider because there was no lawyer to replace. Defendant, although still opposed to
representation by Baltodano, accepted referral to the public defender’s office
in order to bring a third Marsden motion.
Third Marsden Motion
Upon
Baltodano’s reappointment, defendant filed a third Marsden motion. He told the
court Baltodano had not timely conferred with him before the August 2009
hearing, he had not intended to waive time for a preliminary hearing and had
asked for other counsel, and Baltodano had repeatedly requested continuances
because of her own work conflicts. He
said she had ignored his emails instructing her not to waive time again, and
should have attempted to withdraw any time waiver he had made. He also said he and Baltodano had exchanged
“very hostile words†towards the end of her prior representation, the delay of
the preliminary hearing had cost him additional money to renew bail, and
Baltodano had not investigated his case in a timely manner. He sought appointment of anyone but Baltodano
because their relationship was not going to work.
Baltodano
said she had explained to defendant his rights to a speedy preliminary hearing
and why he should waive time before the August 2009 hearing, and defendant had
agreed to do so. She also had explained
to defendant that she had sought some continuances because she was in trial on
“serious cases.†She contended that
defendant was raising issues that had already been rejected by the court in
denying his first Marsden motion,
including regarding his time waiver. She
further stated that she was prepared to represent defendant, did not take his
complaints personally, and understood his frustration.
The
court denied defendant’s third Marsden motion
and told defendant, “[y]ou two are going to have to just get along.†Defendant said he would not talk to
Baltodano.
Fourth Marsden Motion
In
May 2011, defendant filed a fourth Marsden
motion. He repeated many of his
complaints about Baltodano’s prior representation of him, argued that she
should have withdrawn any waiver of time he had made, did not sufficiently
challenge the People’s March 2010 request for a continuance, and added that he
had filed a complaint against her with the Bar Association. Baltodano said she had never acted
disrespectfully towards defendant, had diligently tried to contact and meet
with him, and detailed to the court her contacts with him prior to the August
2009 hearing. She thought the court
should allow her to continue to represent defendant because she was willing to
work with him and knew his version of events.
The
court denied defendant’s fourth Marsden motion. Among other things, it found Baltodano to be
credible and, on the other hand, did not find defendant “credible at all.†It found defendant was “very clever†and
“extremely manipulative,†had filed his motion “once again for the purposes of
delay,†and was “purposefully failing to communicate with Baltodano due to
issues of manipulation, anger and purposes of delay.†The court advised defendant, apart from its
ruling, that he should work with Baltodano because she was “one of the best
attorneys in the Bay Area in felony criminal defense matters.â€
Fifth Marsden Motion
A
jury trial began in June 2011. Before
opening statements, defendant brought his fifth Marsden motion based on Baltodano’s unwillingness to present an
involuntary intoxication defense. He
wanted an expert to testify that a drug, such as GHB, did not necessarily
remain in a person’s system for longer than three or four hours to explain why
his blood had tested negative for drugs.
He also said he was missing money and that a witness interviewed by
Baltodano said he “looked out of it†that day, supporting his theory that someone
drugged him, and that his theory was a plausible explanation for what happened,
particularly given that the prosecution’s theory lacked a motive.
Baltodano
said the evidence did not support an involuntary intoxication defense. She intended to present evidence of his
drinking instead.
The
court denied defendant’s fifth Marsden motion. It concluded, “counsel is making her best
efforts to provide a constitutionally adequate defense. I don’t see there’s been a breakdown of
communication, and trial tactics are based on a rational basis.â€
Prosecution’s Case
The
prosecution presented evidence that on the day of the incident, defendant
attended a fish fry with Tamara Threadgill, with whom he had once had a
relationship, and their teenage son, Kenneth Johnson, Jr. (Kenneth, Jr.), both
of whom testified at trial. The
gathering was at the apartment of Threadgill’s daughter, Sarrita Harrison, in
Pittsburg, California.
Threadgill’s
and Kenneth, Jr.’s testimony indicated that defendant drank throughout the
gathering. He began to make vulgar
sexual remarks to Threadgill, and continued to do so despite being told to
stop. According to Kenneth, Jr., about a
couple of hours after they had arrived, he and his father started arguing about
weightlifting, and defendant, who was “kind of drunk,†made another sexual
remark about Threadgill. Kenneth, Jr.
told him not to talk that way about his mother.
Defendant became upset, starting yelling threats at Kenneth, Jr., and
hit him in the chest. Threadgill jumped
on defendant’s back to get him off Kenneth, Jr. and defendant elbowed
Threadgill in the stomach.
Kenneth,
Jr. fled from the apartment. Defendant
ran after him, saying, “ ‘Where’s he at?
Where’s that little nigger? I’m
going to kill him.’ †Threadgill chased
after defendant and told him to leave, and he elbowed her again. She saw defendant walk into a gazebo where a
party was taking place and scream at a pregnant woman. Threadgill called the police, telling them
defendant had “gone crazy.â€
Maria
Garcia testified that she and some people were gathered in a social center for
a baby shower in her honor when she heard shouting outside and saw a man enter
the room who looked somewhat like defendant.
The man grabbed Ronnie Oduca by the neck and pushed him against a
window, then shouted a lot. Garcia, who
did not speak much English, heard him say the word “nigger†repeatedly. When Garcia approached the man, he turned and
pushed her shoulder forcefully. He moved
towards other people at the party, pointing at them; after a few minutes, he
left. Pittsburg Police Officer Sankara
Dumpa testified that Garcia gave her a statement about this disturbance at the
scene of the incident where defendant was arrested.
Pittsburg
Police Officers Nicholas Boccio and Jessica Bledsoe testified that on the day
of the incident, they responded to a dispatch call concerning a domestic
disturbance at a Pittsburg apartment complex involving “an ex-Marine and boxerâ€
who was “extremely intoxicated.â€
Defendant came out of a community center of the apartment complex
walking fast, and appeared to be extremely agitated, breathing heavily,
perspiring profusely, and clenching his fists.
He was extremely angry, not listening, and “fighting and yelling†at
people. He squared off and faced Boccio
in a combative, boxing-style stance with his fists clenched and advanced
towards Boccio from about 20 feet away.
The
officers, although their efforts were resisted and impeded by defendant, were
able to handcuff him and take him to their patrol car. They smelled a strong odor of alcohol coming
from him, and observed his eyes were bloodshot, red, and watery and his speech
was slurred. Defendant, although he did
not physically resist the officers as they took him to the patrol car, told
them that they were “a bunch of pussies,†he was a Marine, and he would get
someone to “take care†of Boccio.
He refused to put his legs into
the car and yelled, “I’m a Marine, you can’t do anything to me. You can’t stop me. You’re all a bunch of pussies.†As Boccio tried to put his feet into the car,
defendant kicked him in the chest, then kicked in his direction approximately
two more times. The officers eventually
pulled defendant into the car.
Defense Case
Paul
Cahill testified that he was defendant’s roommate for a decade, until shortly
before trial. Defendant drank, not
necessarily every night, but “more often than not,†and became “drunk†about
two-thirds of the time. Alcohol
magnified his tendencies for anger. He
became “verbally aggressive and sometimes irritating†to Cahill, and they had
had some shoving and finger pointing incidents, but Cahill never saw him become
physically aggressive with anyone.
Defendant argued “a lot†with other people when he drank. Sober, defendant had a tendency to mumble,
which became more pronounced when he drank.
Defendant almost always kept his money in one or another of his socks
because he had lost wallets in the past.
On cross-examination, Cahill acknowledged defendant had lost other items
and was “careless.â€
Defense
counsel solicited testimony from Officer Bledsoe that on the day of the
incident, Threadgill told Bledsoe they went to the social gathering about 4:00
p.m, defendant drank most of three bottles of Hennessy, and the incident
started when defendant was play fighting with Kenneth, Jr. Threadgill did not say defendant made sexual
comments. Kenneth, Jr. gave a similar
statement to Bledsoe and did not say anything about sexual comments, bench pressing,
or weightlifting; his body was examined and no bruising was found.
Contra
Costa County Criminalist Daryl Chan testified that a sample of defendant’s
blood taken approximately 7:45 p.m. on the day of the incident was found to
have a 0.15 blood alcohol level, almost twice the legal limit. Given defendant’s height and weight, and
assuming he was contacted by police at 6:05 p.m. and burned off some alcohol
thereafter, his blood alcohol level would have been 0.17 at the time of the
contact. At these levels, a person would
be delayed in understanding and responding to instructions, and possibly would
not be able to comprehend them. On
cross-examination, Chan acknowledged that defendant could have still been
absorbing alcohol at the time of his arrest and heavy drinkers can have a
higher tolerance for alcohol.
Defendant
also testified. He said he remembered
the day’s events “for the most part.†He
did not engage in aggressive actions or inappropriate behavior. He was almost 50 years old, a former Marine,
a one-time amateur boxer, had two children with Threadgill from their previous
relationship, had contacted her that day to arrange a time to see Kenneth, Jr.,
and had agreed to Threadgill’s idea that they go to Sarrita’s apartment for a
cookout. He had $2,500 in $100 bills in
his left sock, where he typically kept his money. At Sarrita’s apartment, he pulled out the
money in front of people to give Sarrita $100 to shop for food.
Defendant
testified that he and Sarrita later went to a liquor store, where he bought a
pint of Hennessey. When they returned,
he poured some into a shallow champagne glass and sat on the living room couch
drinking, leaving the bottle on the kitchen counter, where he could not see
it. He denied drinking magnified his
tendency towards anger or that he had “anger issues.â€
Over
the next couple of hours, defendant said, he refilled his glass two or three
times. He began to feel “really weird,â€
“almost like an out of body experience,†which had not happened to him
before. He could hardly stand and could
not speak his thoughts. Defendant felt
someone whom he could not identify because of his altered state reach into the
sock where he kept his money. He tried
to pull the hand away and leave the apartment.
Threadgill grabbed him; he pulled away from her and went outside. He did not remember play fighting, arguing
with, or hitting Kenneth, Jr., or making sexual comments to Threadgill.
Defendant
said that, once outside, he did not want to drive in his altered state. He went to a community center and grabbed
Ronnie Oduca, trying to say that he needed help, but he could not say the right
words. Garcia attacked him and he put
out his hand trying to keep her from hitting him.
Two
uniformed police officers arrived, who defendant thought were there to help
him. He walked up to them peaceably
without any intent to attack them, and got down on the ground immediately when
told to do so. The officers did not
allow him to explain what he was experiencing, very aggressively handcuffed
him, causing him a lot of pain, and took him to a patrol car. Although he was “pretty pissed off†at the
police, expressed his disappointment to them, and may have said some
profanities, he did not say what the officers claimed he said.
Defendant
further testified that Boccio threw him into the car, causing him to hit his head
on the car door. He struggled to sit up
on the slippery car seat and Bledsoe yanked him across the seat. Money fell out of his sock. He continued to express his dissatisfaction,
but the officers’ testimony exaggerated “a little bit†what he said. Asked if he kicked Boccio in the chest,
defendant answered, “Not with ever any intent to kick him at all.â€
Sentencing, and Appeal
The
jury found defendant guilty of resisting an executive officer, Boccio, and
misdemeanor batteries against Kenneth, Jr., Ronnie Oduca, and Martha Garcia,
found him not guilty of inflicting corporal injury on a spouse, cohabitant, or
child’s parent, and of the lesser included offenses. The court suspended imposition of sentence
and placed defendant on probation with certain conditions, including that he
serve seven months in county jail.
Defendant filed a timely notice of appeal.
Counsel Claim
Defendant
first argues that he received ineffective assistance of counsel from Baltodano
because she refused to investigate and argue the defense of involuntary
intoxication on his behalf. We disagree.
In
order to establish a claim of ineffective assistance of counsel in a direct
appeal, a “defendant bears the burden of demonstrating, first, that counsel’s
performance was deficient because it ‘fell below an objective standard of
reasonableness [¶] . . . under prevailing professional norms.’ [Citations.]
Unless a defendant establishes the contrary, we shall presume that
‘counsel’s performance fell within the wide range of professional competence
and that counsel’s actions and inactions can be explained as a matter of sound
trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel
acted or failed to act in the manner challenged,’ an appellate claim of
ineffective assistance of counsel must be rejected ‘unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be
no satisfactory explanation.’
[Citations.] If a defendant meets
the burden of establishing that counsel’s performance was deficient, he or she
also must show that counsel’s deficiencies resulted in prejudice, that is, a
‘reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ †(People
v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
Defendant
argues he does not need to show he was prejudiced by Baltodano’s failure to
present an involuntary intoxication defense because this in effect denied him
counsel entirely, making such a showing unnecessary pursuant to
648, 658-659.
As
we have discussed, defendant testified that he felt weird and had an
out-of-body experience that made it difficult for him to communicate his
thoughts and put him in an altered state after he drank a pint of Hennessey at
the social gathering. The trial court
instructed the jury sua sponte regarding involuntary intoxication. Defense counsel did not present evidence on
the issue and did not refer to involuntary intoxication in her closing
argument. Instead, she argued that
voluntary intoxication negated the specific intent required to establish
defendant resisted an executive officer.
Defendant
contends his purported involuntary intoxication would have been a complete
defense under the circumstances. (See,
e.g., People v. Scott (1983) 146
Cal.App.3d 823, 831-833 [involuntary intoxication resulting from unknowingly
drinking hallucinogen-containing punch negated criminal intent to unlawfully
take another’s vehicle under mistake of fact theory].) Defendant, quoting from People v. Easley (1988) 46 Cal.3d 712—an inapposite case involving
an attorney found to have a conflict of interest based on multiple
representations—argues Baltodano did worse than “ ‘pull[] [her] punches’ †(
involuntary intoxication defense.
Defendant’s
argument is unpersuasive because the record supports Baltodano’s conclusion
that there was insufficient evidence to support an involuntary intoxication
defense. A blood sample taken from
defendant upon his arrest tested negatively for drugs, such as GHB. Defendant told the court he understood from
unidentified “experts†and from reading “date rape type cases and Mickey Finn
type cases†that these types of drugs remained in a person’s system for a short
duration, perhaps three or four hours.
Defendant does not identify anywhere in the record where he established
this is in fact the case. Even assuming
for the sake of argument that it is correct, he does not establish that the
blood sample obtained by police was taken beyond the time for such a drug to
dissipate in his system. Evidence
introduced at trial suggests the contrary.
Chan testified that the blood sample was drawn at 7:45 p.m. on the day
of the incident, and Bledsoe said Threadgill reported that she, defendant and
Kenneth, Jr., went to Sarrita’s apartment about 4:00 p.m. that day. This testimony indicates the blood was drawn
within a couple of hours of defendant’s arrest.
There was no evidence to support his involuntary intoxication theory
other than his own insubstantial, self-serving testimony, which was also
seriously compromised by the contradictory testimony of multiple witnesses and
the high blood alcohol level found in his blood sample.
On
the other hand, the record indicates there was strong evidence of defendant’s
voluntary intoxication, which Baltodano relied on in her defense. That included Threadgill and Kenneth, Jr.’s
testimony about defendant’s drinking and drunken condition at the social
gathering, the officers’ testimony that defendant smelled of liquor, and Chan’s
testimony that defendant’s high blood alcohol level soon after his arrest was
close to twice the legal limit.
We
conclude that Baltodano provided a professionally competent representation
based on the available evidence. As the
People note, “[t]here is no constitutional right to an attorney who would
conduct the defense of the case in accord with the whims of an indigent defendant.†(People
v. Lucky (1988) 45 Cal.3d 259, 281.)
“A defendant does not have the right to present a defense of his own
choosing, but merely the right to an adequate and competent defense. [Citation.] . . . ‘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.’ †(People
v. Welch (1999) 20 Cal.4th 701, 728-729.)
Defendant’s ineffective assistance of counsel claim is without merit.
Defendant
argues that the trial court abused its discretion in failing to grant any of
his five Marsden motions to relieve
Baltodano and appoint new counsel for him.
Defendant’s arguments are unpersuasive.
“[S]
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.†(People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).)
“[N]ew
counsel should not be appointed without a proper showing. . . . The court should deny a request for new
counsel at any stage unless it is satisfied that the defendant has made the
required showing. This lies within the
exercise of the trial court’s discretion, which will not be overturned on
appeal absent a clear abuse of that discretion.†(Smith,
supra, 6 Cal.4th at p. 696.)
In
his opening brief, defendant presents general arguments, with little supporting
law, why the trial court should have granted his Marsden motions. He
discusses the factual background regarding his five motions, but does not
identify any particular abuse of discretion by the court in denying any of
them. Instead, he complains that,
assuming he made a knowing and intelligent waiver of his right to a speedy
preliminary hearing, “[t]ime again, [defendant] showed unmistakable evidence
that his counsel was ignoring his pre-trial confinement status, and not
investigating his sole defense.†He
further complains that his counsel did nothing when he insisted on no further
delay of his preliminary hearing, continued the hearing because of her own
unavailability, made only half-hearted objections to the prosecutor’s requests
for continuances and failed to insist that the prosecution make the requisite
showings for such continuances, and did not make a bail reduction motion on his
behalf.
After
a year of this “nonsense,†defendant contends, he “gave up†and elected to
represent himself without the court ruling on his first Marsden motion.
He was ignored by the court when he
sought conflict-free counsel, and by Baltodano when he sought to present
evidence at trial that supported his involuntary intoxication theory.
Defendant
concludes, “[t]here can be no clearer evidence of a total breakdown in
communications. Every judge before whom
[defendant] appeared during the course of his two-year ordeal should have
recognized this breakdown. The lack of
trust and communication between [defendant] and Baltodano is stark and
unmistakable.â€
Defendant’s
general arguments are unpersuasive. To
the extent he argues the trial court abused its discretion by failing to grant
his Marsden motions because of his
disagreement with Baltodano about investigating and presenting an involuntary
intoxication defense, this lacks merit.
“Tactical disagreements between defendant and his attorney do not
themselves constitute an ‘irreconcilable
conflict.’ †(People v. Welch, supra,
20 Cal.4th at pp. 728-729.) Nor does a
disagreement between defendant and appointed counsel concerning trial tactics
necessarily compel the appointment of another attorney.†(People
v. Lucky, supra, 45 Cal.3d at p.
282.) As we have discussed, defendant
does not show that his involuntary intoxication defense theory had any merit,
nor does he show that Baltodano did not provide him with professionally
competent representation based on the available evidence.
As
for Baltodano’s role in the delay of defendant’s preliminary hearing from July
2009 to May 2010, when he assumed his own representation, defendant does not
establish that the court abused its discretion in determining her actions were
not bases for granting any of defendant’s Marsden
motions. He does not challenge that
in 2009 and 2010, Baltodano, as she asserted below, needed more time to
investigate his case or was not available because of work conflicts, nor that
the public defender’s office could not accommodate his request that another
attorney be assigned to his case, nor does he establish that these matters
rendered Baltodano’s representation of him ineffective or improper grounds for
seeking further continuances (see, e.g, People
v. Superior Court (Lerma) 48
Cal.App.3d 1003, 1009 [good cause to continue trial exists “when defense
counsel has been engaged in another trial or has requested additional time in
which to prepare for trialâ€]); he only establishes that he was against further
delays and dissatisfied with Baltodano’s performance, and contends that this
led to an irreconcilable conflict between them.
Defendant
also argues Baltodano should have done more to oppose the prosecutor’s two
requests for continuances in March and April of 2010. Whether or not that is the case, the
resulting delays were minimal and occurred when defendant was not in custody,
having posted bail.
title="">[3] Also, Baltodano timely opposed these requests
on certain grounds, and also planned, consistent with her opposition, to bring
a bail reduction motion when defendant brought his first Marsden motion consistent with the grounds for her opposition.
Defendant’s
frustration with the months of delay of his preliminary hearing is understandable. However, the record is clear that he waived
time for a speedy preliminary hearing.
As the People point out, this waiver, once given, could not be
withdrawn. (People v. Love (2005) 132 Cal.App.4th 276, 285 [the Legislature has
not “created a provision for the withdrawal of properly entered waivers†to a
speeding preliminary hearing] in the relevant statute, section 859b].) In his reply brief, defendant attempts to distinguish his
circumstances from Love, but
regardless, Love holds that a waiver
of a speedy preliminary hearing, once given, cannot be withdrawn. In light of his waiver, defendant does
not establish how the delay of his preliminary hearing during Baltodano’s first
appointment substantially impaired his right to assistance of counsel or a
speedy trial.
Furthermore,
contrary to his contention that Baltodano’s representation caused significant
delay in his trial, the record indicates defendant was responsible for
substantial delay. His own
unreasonableness caused his private counsel to withdraw from representing him,
and he insisted on pursuing a meritless voluntary intoxication defense
theory. Therefore, we conclude
defendant’s claim that the trial court abused its discretion in denying his
role in the delay in his preliminary hearing and, by extension, in his trial,
lacks merit.
Finally,
defendant’s contention that the court abused its discretion in not granting his
Marsden motions because of the
purported total breakdown in his communications with Baltodano is also
unpersuasive. As the People point out, a
conflict between a defendant and counsel will not be considered irreconcilable
“ ‘if the defendant has not made a sustained good faith effort to work out any
disagreements with counsel and has not given counsel a fair opportunity to
demonstrate trustworthiness.’ †(
1044, 1086.) As quoted by the trial
court in denying defendant’s fourth Marsden
motion, “ ‘ “[i]f a defendant’s claimed lack of trust in, or inability to
get along with, an appointed attorney were sufficient to compel appointment of
substitute counsel, defendants effectively would have a veto power over any
appointment and by a process of elimination could obtain appointment of their
preferred attorneys, which is certainly not the law.†’ †(People
v. Memro (1995) 11 Cal.4th 786, 857.)
None
of the state or federal case law
cited by defendant in his reply brief contradict these holdings or address
circumstances like those before us.
(See, e.g., People v. Eastman (2007)
146 Cal.App.4th 688, 695-698 [trial court should have held a
sufficient to show defendant’s grievances and the trial court’s responses];
66 [trial court should have made inquiries when defendant claimed his attorney
did not want to defend him, and his attorney remained silent];
262 F.3d 998, 1003-105 [defendant’s Sixth Amendment right to counsel was
violated by denial of his motion to substitute counsel in the face of the
complete lack of communication between counsel and defendant, which was
acknowledged by counsel].) The record
indicates that, other than the defendant’s defective second
representing himself, the court held hearings, made inquiries, and gave
defendant the opportunity to discuss his concerns. The record also indicates that defendant was
a very difficult client who fixated on the delay of his preliminary hearing
long after it occurred without establishing that it significantly impaired his
defense, right to a preliminary hearing, or right to a speedy trial, persisted
in criticizing Baltodano for not pursuing a meritless defense theory, and did
not make a sustained good faith effort to work out his disagreements with her,
particularly after her reappointment.
Baltodano, on the other hand, continually indicated her willingness and
ability to represent and work with defendant, which representations the court
was entitled to believe in its discretion.
Indeed,
unlike any of the cases cited by defendant, when the court denied defendant’s
fourth Marsden motion after hearing,
it specifically found he was not credible, and had brought the motion in order
to further delay the proceedings, and that Baltodano was credible. Defendant does not explain why we should
disregard these factual findings, and we have no reason to disagree with them. (People
v. Jones (2003) 29 Cal.4th 1229, 1245 [in ruling on a Marsden motion, a court is entitled to accept counsel’s explanation
“ ‘[t]o the extent there was a credibility question between defendant and
counsel at the hearing’ â€].)
In
short, the trial court did not abuse its discretion in denying defendant’s
The
judgment is affirmed.
_________________________
Lambden,
J.
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Richman, J.
references are to the Penal Code unless otherwise stated.
dismissed one count of misdemeanor battery upon motion by defendant.
