Filed 10/13/17 P. v. Tanori CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and Gary T. Friedman, Judges.*

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Sergio Tanori, an inmate at the Kern Valley State Prison, was convicted by jury of battery upon a correctional officer. (Pen. Code,[1] § 4501.5.) In a bifurcated proceeding, the court found true allegations alleging defendant had seven prior strike convictions (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). Defendant was sentenced to a prison term of 25 years to life, to be served consecutive to his commitment sentence.

On appeal, defendant contends (1) this court should independently review the correctional officer personnel records examined by the trial court pursuant to defendant’s motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)), (2) the trial court erred in denying defendant’s motion seeking to replace his appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), (3) the trial court erred in failing to compel two inmate witnesses to testify, (4) defense counsel rendered ineffective assistance of counsel for failing to consult with or call a bite mark expert to testify and by failing to subpoena two inmate witnesses to testify, and (5) defendant was prejudiced by the cumulative effect of these errors.

We conclude the trial court abused its discretion in denying defendant’s Marsden motion. We therefore reverse the judgment and will remand the matter to the trial court for a new trial.

FACTUAL AND PROCEDURAL HISTORY

Prosecution’s Case

Correctional Officer Hector Robles worked in the investigative services unit at Kern Valley State Prison. Correctional Officer Salvador Herrera worked in the institutional gang unit, investigating gang violence within the prison. Defendant and another inmate, Olivares, shared a cell in the administrative segregation unit (ASU) of the prison.

Pursuant to prison policy, an inmate in the ASU must submit to an unclothed body search prior to being escorted out of a cell. Once the search is completed, the inmate is placed in restraints and the officers removing the inmate from the cell will give a directive to the control booth officer to open the cell door. If there is an additional inmate in the cell, he or she must be restrained prior to and during the time the cell door is open. The cellmate is also asked to exit the cell.

On January 11, 2013, Robles and Herrera were assigned to transport Olivares to a court appearance. Robles instructed defendant to turn around, back up to the food port, and submit to handcuffs. Defendant complied. Robles then instructed defendant to go to the back of the cell and face away from the door to give Olivares privacy. Defendant did as instructed. The officers asked Olivares to submit to an unclothed body search. Robles explained Olivares was being transported to his court hearing. Olivares reluctantly complied. After the search, Olivares got dressed in a jumpsuit.

Officer Herrera placed waist restraints on Olivares through the port in the cell door. Herrera directed the control booth officer to open the cell door. The cell door opened, and Herrera instructed Olivares to back out of the cell and step to the left of the cell door. It is important for the inmate to step to the left upon exiting the cell so the officer’s view into the cell and view of the cellmate is not obstructed. In this instance, it was difficult for officers to see into the cell because of the narrow door and because of Olivares’s height and weight. After receiving the command, Olivares stepped backwards out of the cell but did not step to the left. Officers Robles and Herrera could not see what defendant was doing. Herrera again ordered Olivares to step to the left of the cell door, but Olivares refused to comply. Herrera forcibly moved Olivares to the left.

At that time, Officer Robles could see defendant had turned around and was facing them. Robles suspected there was contraband in the cell. The cell door began to close. Robles yelled for the control booth officer to leave the door open and instructed defendant to turn around and back out of the cell. Robles was going to place defendant in a holding cage and ask building staff to search the cell for contraband. Defendant did not comply. Instead, defendant stated, “Fuck you, you’re fuck’n stupid.” Defendant lowered his head and right shoulder and charged toward Robles. Robles stepped partially inside the threshold of the door to “meet force with force” and to prevent defendant from running out of the cell. Robles ordered defendant to “get down,” which means to lay in a prone position. Defendant did not comply. Robles braced for impact as defendant used his head and right shoulder to ram Robles in his chest. Robles fell backwards and caught his right shoulder on the doorway.

Officer Herrera yelled for assistance. Defendant leaned back and again hit Officer Robles in the chest, using his head and right shoulder, and pinned Robles against the door. Robles wrapped his arms around defendant’s upper torso, and the two men fell to the floor. Defendant landed on top of Robles. Defendant tried to head-butt Robles several times, but Robles was able to move his face out of the way.

Officer Michael Cervantes ran over and took control of Olivares. Officer Herrera ran into the cell and pulled defendant off Robles. As this happened, defendant kicked Officer Robles several times. Robles got up. Both he and Herrera ordered defendant to stop resisting. Defendant refused to comply.

As Herrera held onto defendant, he felt defendant bite his right forearm. Defendant bit through two layers of clothing Herrera was wearing, including a long-sleeved thermal shirt. Herrera pulled his arm away in pain and pushed defendant’s head down. Herrera grabbed defendant with his other arm but saw that defendant was trying to bite that arm as well. Herrera struck defendant twice in the face with his fist. Defendant stopped resisting. Robles took control of defendant’s ankles and positioned defendant to pull him out of the cell. Defendant was removed from the cell.

Once Officers Robles and Herrera were holding defendant outside in front of the cell, other officers responded. Herrera asked that leg restraints be placed on defendant so that he could no longer kick. Robles and Herrera relinquished physical custody of defendant to the responding officers.

Officers Robles and Herrera received treatment at the prison clinic for their injuries. The bite mark on Herrera’s arm bruised and then faded away between six and eight days later. Robles’s knee hurt for several weeks following the incident. Defendant suffered an abrasion, bruises, and a swollen eye.

Defense Case

Defendant testified on his own behalf. On January 11, 2013, defendant followed directions to be handcuffed and to face the back wall of the cell. Olivares and Officer Robles began arguing, and Olivares asked for Robles’s badge number and for a sergeant to be present. Olivares backed out of the cell, and the cell door closed.

Defendant, still facing the wall, heard the cell door open again, and Robles rushed into the cell yelling, “Get down.” Robles bumped into defendant and, according to defendant, “it just went wild.” Defendant dropped to one knee and was in the process of lying down when Herrera came into the cell and began punching defendant on the top of his head. Defendant fell down into a prone position and tried to protect his face. Robles was putting pressure on defendant’s legs, and the two officers were punching defendant all over, particularly his face. Herrera punched defendant in the eye three times while yelling “stop resisting.” Defendant told Herrera “[he was] not resisting.”

Defendant was dragged out of his cell. He was placed in waist and leg restraints and taken to the prison hospital. Defendant was eventually taken to an outside hospital for a CAT scan. Since the incident, his eye twitches frequently.

ANALYSIS

I. Defendant’s Pitchess Motion

Defendant requests we independently review the trial court’s ruling on his Pitchess motion to determine whether any materials were withheld improperly from disclosure. The Attorney General does not object.

Prior to trial, defendant filed a Pitchess motion seeking discovery of any complaints related to racial or ethnic prejudice, excessive force, improper tactics, dishonesty, falsification of reports, conduct demonstrating a low moral character, illegal activities, or violations of department policies or procedure against Officers Robles and Herrera. The trial court granted defendant’s motion, conducted an in camera review, and determined some documents were relevant and subject to disclosure.

On appeal, the court may conduct an independent review of the transcript of the in camera hearing and the records reviewed by the trial court to determine whether any personnel records were withheld improperly. (People v. Mooc (2001) 26 Cal.4th 1216, 1228–1232.) Our review of the sealed personnel records “reveals no materials so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion.” (People v. Samayoa (1997) 15 Cal.4th 795, 827.)

II. The Trial Court Abused Its Discretion by Denying Defendant’s Marsden Motion

Defendant contends the trial court erred in denying his Marsden motion to have substitute counsel appointed. He specifically asserts defense counsel’s admitted error—the failure to subpoena two inmate witnesses to testify at defendant’s trial—was sufficient to show substitute counsel should have been appointed. The Attorney General contends defendant received all protections afforded under Marsden, and as a result, his motion was properly denied. We agree with defendant.

A. Background

On July 30, 2014,[2] the day defendant’s trial began, defendant moved to have new counsel appointed pursuant to Marsden, supra, 2 Cal.3d 118.

At the Marsden hearing, defendant explained defense counsel had been assigned to his case in December of 2013 and had moved to continue the trial until March 2014. During this three-month period of time, defense counsel did not communicate with defendant to discuss his case. As a result, defendant sent a letter to defense counsel about his case in January 2014. Counsel never replied. Defendant began researching and drafting his own Pitchess motion.

On March 11th, defendant spoke to defense counsel briefly about his case. Defendant declined a plea offer, insisting “[he was] innocent and did not bite or attack the officials in any way possible.” Defendant told his defense counsel he “need[ed] a dedicated lawyer to prove [his] innocence.” Defense counsel replied he would speak with the judge to ask for the appointment of new counsel or ask for a continuance. The court granted counsel’s request for a continuance.

Defendant stated defense counsel filed a Pitchess motion “because [defendant] told him to do it and it was needed.” In response to defense counsel’s motion, defense counsel obtained information about the alleged use of excessive force by Officers Robles and Herrera against two other inmates. Defense counsel asked for a continuance to investigate this information. The court granted his request. According to defendant, over the course of the next several months, defense counsel did not communicate with him, nor did he respond to defendant’s questions.

On July 3d, at the trial readiness hearing, defense counsel failed to make any effort to consult with defendant about trial strategy, or, more specifically, to discuss his defense. Counsel also failed to inform defendant how any of the information discovered pursuant to defendant’s Pitchess motion would bear on his defense. According to defendant, he had no knowledge about his defense, nor was he given the opportunity to discuss defense counsel’s list of witnesses or expert testimony. Moreover, defense counsel failed to mail documents he had promised to send to defendant so they could agree upon a defense. Instead, defense counsel “stated we’re ready for trial.”

The case was subsequently trailed to July 14th. Defendant claimed defense counsel “continued to deny [him] any of the documents … for the defense being established.” On this date, defense counsel also told defendant “witnesses needed to be subpoenaed.”[3] Defense counsel trailed the case to July 21st.

On July 21st, defense counsel requested the court trail the case again “due to witnesses not being subpoenaed.” According to defendant, the court admonished defense counsel for failing to timely subpoena the witnesses.

When the court gave defense counsel the opportunity to respond to defendant’s statements, defense counsel stated he “ha[d] no response to what [defendant] just read.” He explained, “[O]ur investigation that was conducted was proper and we were prepared to go forward.” However, although he had announced “ready,” he “inadvertently … wasn’t ready because there [were] two witnesses … that [he] should have brought before the court first to determine whether they were going to testify or not.”

The court noted defense counsel previously represented that the two inmate witnesses would refuse to testify. Counsel replied affirmatively but explained “[he] should have brought them before the court so they can tell the court I’m not gonna testify so I could use my investigator to use their statements to impeach.”

When the court asked defense counsel how he could use the inmate witnesses’ statements if they had not testified in an earlier proceeding, counsel admitted, “[T]hat’s what should have been done.” He explained, “I should have had them come to court to testify in a hearing … to give foundation as to their testimony.”

The court agreed but stated, “[W]e don’t know if they’d even testify. You told me they said they won’t.” Defense counsel explained the inmate witnesses should have made those denials before the court so defense counsel could use his investigator to impeach the inmate witnesses. Defense counsel articulated his belief that if the witnesses were deemed unavailable, then the defense investigator could testify to the inmate witnesses’ prior out-of-court statements. The court rejected defense counsel’s theory, explaining:

“Well, that would mean that the D.A. could come in here and say, I talked to 14 different correctional officers and they are all going to say that [defendant] did such and such or didn’t do such and such. And they talked to the investigator and told he or she certain things but now they are not going to come in. Do you think for a minute that the D.A.’s investigator can come in based on that alone and testify because of their unwillingness, i.e., unavailability because they would take the 5th to testify. I just don’t see it.”

Defense counsel replied that in circumstances where a witness exercises his or her privilege against self-incrimination, “after they’ve given a statement to an investigator,” then their unavailability would make their prior statements admissible. Defense counsel then added, “n my discussion with [defendant] moments ago … his concerns regarding the Marsden motion would be alleviated if we have the two witnesses regarding the Pitchess motion … [brought] into court[,] that was his primary concern even though he read a lot of things into the record.” According to defense counsel, “defendant’s primary concern was that we had no way to challenge the officer’s propensity to fabricate reports and bring false allegations against an inmate,” and this went directly to defendant’s claim of self-defense.

The trial court reviewed Evidence Code section 240, subdivision (a), which defines the bases for finding a witness unavailable. When it appeared that none of the grounds for unavailability applied to Inmates Aubert and Martinez, the court denied defendant’s [i]Marsden motion. The court held there had been no showing defense counsel failed to provide adequate representation, nor had there been evidence indicating defendant and defense counsel had become embroiled in an irreconcilable conflict.

B. Legal Principles

When a defendant seeks substitution of counsel based on inadequate representation, the trial court must permit the defendant to explain the basis of his or her contention and to relate specific instances of counsel’s alleged inadequate performance. A defendant is entitled to relief if the record clearly demonstrates counsel failed to provide competent representation, or the defendant and counsel have become embroiled in an irreconcilable conflict from which ineffective representation is likely to result. The decision whether to grant a substitution of counsel is within the discretion of the trial court. We will not find abuse of discretion unless the failure to substitute appointed counsel substantially impaired the defendant’s right to effective assistance of counsel. (People v. Roldan (2005) 35 Cal.4th 646, 681, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, People v. Taylor (2010) 48 Cal.4th 574, 599; People v. Smith (2003) 30 Cal.4th 581, 604; Marsden, supra, 2 Cal.3d at p. 123.)

C. Legal Analysis

Defendant contends defense counsel’s representation was inadequate on three grounds. First, defense counsel admitted he had failed to subpoena two inmate witnesses who could have offered impeachment evidence against Officers Robles and Herrera. Second, defense counsel erroneously believed the witnesses could be declared unavailable, even though they had not refused to testify at defendant’s trial while subject to examination. Finally, defense counsel failed to understand that although the witnesses had stated they would refuse to testify, the trial court had a duty to try to compel them to testify.

Based on the evidence presented at defendant’s Marsden hearing, including defense counsel’s admission of error in failing to subpoena the inmate witnesses, we are persuaded defendant’s motion should have been granted, and for the reasons that follow, the trial court abused its discretion by denying the motion. Although the inmate witnesses stated they would not testify, defense counsel never attempted to secure their testimony because of his erroneous understanding of Evidence Code section 240. We cannot be certain of whether the inmate witnesses would have refused to testify, consistent with defense counsel’s representations, nor do we know whether any impeaching testimony they could have offered would have been found credible by the jury. Nonetheless, the credibility of Officers Robles and Herrera went to the heart of defendant’s claim of self-defense. Defense counsel’s failure to secure the presence of the inmate witnesses at defendant’s trial foreclosed defendant from adducing what could have been critical evidence to his defense. We therefore conclude the trial court abused its discretion in denying defendant’s Marsden motion.

1. Defense Counsel’s Errors

The record shows defense counsel’s failure to subpoena Inmates Aubert and Martinez was based on an erroneous understanding of the law. Defense counsel admitted as much during the Marsden hearing, explaining: “I should have brought [the witnesses] before the court so they [could have told] the court [they were] not gonna testify so I could use my investigator to use their statements to impeach.” We note this would not necessarily have permitted defense counsel to introduce the inmate witnesses’ prior out-of-court statements. (Evid. Code, § 1235 [court may allow in evidence earlier statements of witness to prove truth of content where they are inconsistent with matters to which witness testifies at trial]; People v. Rios (1985) 163 Cal.App.3d 852, 864 [where witness testifies only to name and age and refuses to answer any further questions, “there is no ‘express testimony’ at all from which to infer or deduce implied inconsistency”].) Nonetheless, counsel’s failure to secure the presence of the inmate witnesses at defendant’s trial deprived defendant of the opportunity to question them and demonstrates defendant was receiving inadequate representation.

The Attorney General argues that despite counsel’s erroneous understanding of the law, “the fact remains that defense counsel did not thereafter subpoena the inmate witnesses.” According to the Attorney General, “[defense] counsel reasonably could have determined that the inmates’ testimony would not have assisted [defendant]’s defense and may even have hindered the defense since the jury may not have found the inmates to be credible.” There is support in the record for the Attorney General’s argument. Two days after defendant’s Marsden hearing, the prosecutor disclosed impeachment evidence to defense counsel pertaining to Inmates Aubert and Martinez.

However, we fail to see how defense counsel’s subsequent decision not to subpoena the inmate witnesses shows he did not render ineffective counsel at the time of defendant’s Marsden hearing. The record shows these witnesses had not been subpoenaed because of defense counsel’s erroneous understanding of the law, not because of his concern the witnesses might somehow harm defendant’s claim of self-defense.

A Marsden motion is forward-looking, but it must be based on what has happened in the past. “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.” (People v. Smith (1993) 6 Cal.4th 684, 695, original italics.) While defense counsel’s decision not to seek the testimony of the inmate witnesses following the Marsden hearing may have been a tactical decision, his decision not to subpoena these witnesses before trial was not.

Although defense counsel’s admitted error alone supports the conclusion substitute counsel should have been appointed, the record contains other evidence showing defendant was not receiving adequate representation. In articulating the basis for his Marsden motion, defendant told the trial court he had repeatedly tried to contact defense counsel about his case. He further claimed he had urged defense counsel to file a Pitchess motion, and he had even begun researching and drafting his own Pitchess motion. Further, despite the fact that multiple percipient witnesses to the incident had not been subpoenaed, defense counsel told the court “[he was] ready for trial.” The court trailed defendant’s case so defense counsel could subpoena the witnesses.

When the court gave defense counsel an opportunity to address defendant’s complaints, counsel stated, “I have no response to what [defendant] just read.” Defense counsel proceeded to characterize the nature of defendant’s complaint as defense counsel’s failure to subpoena the inmate witnesses. Counsel never responded to defendant’s other grievances, nor did the court ask defense counsel to respond to defendant’s other stated complaints. “In a Marsden hearing, defendant’s attorney has an obligation to respond when a defendant states seemingly meritorious grounds for a substitution of counsel.” (People v. Henning (2009) 178 Cal.App.4th 388, 404; see People v. Hill (1983) 148 Cal.App.3d 744, 755; People v. Munoz (1974) 41 Cal.App.3d 62, 66.)

We are cognizant of the fact that a criminal defendant may use Marsden as a tactic to delay the proceedings against him or her, and that defendant’s motion here was made on the day trial was scheduled to begin. Nonetheless, the court was obligated to make an adequate inquiry into the nature and extent of defendant’s grievances. Because the court accepted counsel’s representation as to what defendant’s complaint was principally about without making inquiries as to defendant’s other stated reasons for his dissatisfaction with defense counsel, there is no evidence in the record to refute defendant’s complaints. While we would not find inadequate representation based on these asserted errors alone, they further support the conclusion that defendant did not receive all protections afforded under Marsden.

2. Prejudice

Generally, prejudice must be affirmatively shown. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1148.) In certain contexts, however, the burden is on the People to show that prejudicial error has not occurred. (Marsden, supra, 2 Cal.3d at p. 126 [applying standard of review under Chapman v. California (1967) 386 U.S. 18 (Chapman) where the court denied Marsden motion without giving defendant full opportunity to explain dissatisfaction with counsel]; People v. Solorzano (2005) 126 Cal.App.4th 1063, 1071 [defendant entitled to a new trial where court refused to hear defendant’s Marsden motion while his competency hearing was pending].)

Here, the right to effective assistance of counsel is a federal constitutional right secured under the Sixth Amendment (People v. Noriega (2010) 48 Cal.4th 517, 522), and most federal constitutional errors are subject to harmless error review under Chapman (People v. Reese (2017) 2 Cal.5th 660, 668). Although Marsden does not establish a per se rule of reversible error, it does implicate the harmless error standard under Chapman. (People v. Chavez (1980) 26 Cal.3d 334, 348–349; People v. Knight (2015) 239 Cal.App.4th 1, 9 [“Where there is Marsden error, we must reverse, unless the record shows beyond a reasonable doubt that the defendant was not prejudiced”]; People v. Hill, supra, 148 Cal.App.3d at p. 755 [“Marsden error is typically treated as prejudicial per se, since the very nature of the error precludes meaningful appellate review of its prejudicial impact”].)

Under Chapman, we must reverse the conviction unless the People can demonstrate the error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) To determine whether the People have carried their burden, we examine the entire record and must reverse if there is a “‘reasonable possibility’” that the error contributed to the verdict. (Ibid.; see People v. Reese, supra, 2 Cal.5th at p. 671.)

Here, we are unable to conclude the trial court’s erroneous denial of defendant’s Marsden motion was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18.) The inmate witnesses could potentially have offered critical testimony bearing upon the credibility of Officers Robles and Herrera, and based on defense counsel’s admission of error, there was simply no rational explanation for counsel’s failure to subpoena these witnesses. Moreover, because defense counsel failed to respond to defendant’s other stated reasons for his dissatisfaction with defense counsel—and the court made no inquiry into defendant’s other grievances—the very nature of the errors here preclude appellate review of their prejudicial impact.

We conclude defendant adduced sufficient evidence at his Marsden hearing to show that failure to replace his appointed attorney would substantially impair his right to counsel. Because the court prejudicially erred in denying his motion, we must reverse the judgment. In light of our conclusion, we need not reach defendant’s other claims of error.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court for a new trial.

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PEÑA, J.

WE CONCUR:

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FRANSON, Acting P.J.

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BLACK, J.†