P. v. Partida

Filed 5/31/07 P. v. Partida CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Francisco Partida broke into a San Francisco womans apartment one June evening and sexually assaulted her at knifepoint for almost three hours. A jury convicted him of burglary and multiple sexual offenses, and he was sentenced to an indeterminate term of 25 years to life imprisonment plus consecutive sentences totaling an additional 12 years 8 months imprisonment. In this appeal, Partida claims the trial court erred in denying his pretrial motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 and deprived him of his federal due process rights by excluding expert testimony that he suffered from a neurological disorder. We affirm the judgment.

BACKGROUND

On the evening of June 4, 2004, the victima 54-year-old woman who lived alone in a San Francisco apartmentcame home from work shortly before 6 p.m. and began changing clothes for a choir performance at her church. She heard a noise and, upon investigating, found Partida standing in her bathroom. Partida ignored her demand that he leave. Instead, he grabbed her, put his hand over her mouth and told her to be quiet. Partida told the victim he had a knife in his bag but also repeatedly exhorted her to relax, saying, You know me. The victim did not know him, though she believed she may have seen Partida vacuuming in the apartment buildings hallway approximately a week before the incident. Partida blindfolded the victim with a towel. He then went with the victim into the kitchen and, after returning with her to the bedroom, held what felt like a serrated bread knife against her rib cage. Partida sexually abused the victim in numerous ways during the remainder of his time in the apartment. Once, she attempted to escape, but Partida grabbed her head in the crook of his arm and threatened to break her neck. Partida said many things to the victim as he abused her. Among other things, he said he knew the victim would call the police and he knew he would be going to jail for a long time. He said something similar to a person who called him on his cellular phone during the incident. He told the caller,  I wont be able to come and see you tomorrow. I am going to be [in] jail because of the beautiful lady. 

At one point, the victims friend Paul Angelo called from church and left a message on the answering machine. Partida directed the victim to call Angelo back with a rehearsed explanation for her absence. She did so but left a message using an overly calm voice to suggest to her friend that something was wrong. Angelo came to the apartment around 7:30 p.m. and banged on the victims door, asking what was going on. When no one answered, he summoned the police. Police officers also knocked numerous times, without success, and then waited for the victims landlord to arrive with a key. When the officers entered the apartment around 8:50 p.m., they found the victim lying mostly naked on a bed with a black cloth over her head. Partida was sitting on the edge of the bed, holding her down with both arms. The police took him into custody and also seized the bread knife, which had been left lying on the couch with a tissue wrapped around its handle.

In an interview after his arrest, Partida said he worked at the apartment building and had entered the victims apartment using one of the landlords keys. He admitted sexually abusing the victim. He also admitted entering her apartment two or three times before, and once, earlier in the year, he stole three or four thousand dollars in cash that he saw on a chair in her bedroom. Partida said he went into the apartment on the evening of June 4 only because he wanted to take a shower. He intended to sneak out, but he changed his mind when the victim saw him. Partida explained that he had gulped a 24-ounce beer because he had a stressful day, and he told the police the alcohol may have cloud[ed] [his] mind. He said he did not plan to sexually assault the victim but did so because of the craziness of the alcohol. Admitting his behavior had been very stupid, Partida said he was willing to accept the consequences.

Partida was ultimately charged with two counts of residential burglary (Pen. Code,  459), one count of sexual battery (Pen. Code,  243.4, subd. (a)), eight counts of forcible digital penetration (Pen. Code,  289, subd. (a)(1)), one count of assault with a deadly weapon (Pen. Code,  245, subd. (a)(1)), and one count of false imprisonment (Pen. Code,  236). The information alleged Partida personally used a deadly weapon in committing all of the sexual offenses (Pen. Code,  12022, subd. (b)(1) & 12022.3, subd. (a)) and committed the digital penetration counts during the course of a burglary (Pen. Code,  667.61, subd. (a)(e)(2)), while armed with a deadly weapon (Pen. Code,  667.61, subd. (a)(e)(4)), and while the victim was bound (Pen. Code,  667.61, subd. (a)(e)(6)). Partida pleaded not guilty, and the case was tried to a jury. The jury could not reach a verdict on the charge that Partida committed residential burglary on June 4, 2004, or committed the sexual offenses against the victim during the course of a burglary.[1] With these exceptions, however, the jury returned a unanimous verdict finding Partida guilty of all remaining charges and finding true all other enhancement allegations. He was sentenced under the one-strike law (Pen. Code,  667.61) to a term of 25 years to life imprisonment (based on one of the digital penetration counts), plus determinate and consecutive sentences totaling an additional 12 years 8 months imprisonment.

DISCUSSION

I. Denial of Marsden Motion Not an Abuse of Discretion

Partida first argues the trial court committed reversible error by denying his July 15, 2005, Marsden motion for appointment of new counsel. He claims this asserted error amounted to a violation of his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution.

In Marsden, supra, the Supreme Court held that a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendants offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. (2 Cal.3d at p. 124.) For this reason, [w]hen a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsels inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel. [Citations.] (People v. Horton (1995) 11 Cal.4th 1068, 1102.)

On July 15, 2005, Partida expressed a desire to change his court-appointed attorney, and the trial court cleared the courtroom for a Marsden hearing. When the court asked Partida the reason for his dissatisfaction, he simply responded that there were several, and he later said, You know, there are so many reasons. I just cant tell you all of them. When prodded by repeated questions from the court, Partida said, Well, one [reason] is I was going to get out in one year. [] . . . [] And I still dont know what is going on here. [] . . . [] . . . I want to know why, why do they want to give me so much time? [] . . . [] I mean, I know I did hurt somebody. I know that. But its not so much as to them giving me so much time because I never threatened, and I never used a gun or anything like that. And I always asked her for permission, and she always gave me permission. Partida said he wanted to know if his lawyers would take care of this case properly, and he questioned why the prosecutor want[ed] to give [him] so much time when [he hadnt] killed anybody or anything like that. With regard to his attorney, Partida said, [I]f she is going to do a good job with me, then she may continue. But she cant keep bringing me all these lies. And we will have to see how it goes. When the court asked if this meant Partida would be satisfied with his current representation, he responded, Well, I dont know. She has to take a look there, and see if she [is] really going to do a good job or not. The court then reassured him, [Defense counsel] is one of the best attorneys here in this Hall of Justice. When she represents you, you are getting the best representation you could possibly get. In response, Partida said he didnt understand then why he was faced with so much time, and why he hadnt been offered a better possible sentence, like everyone else gets. Specifically, he wondered, Why cant somebody get probation, or what is the question here with that? There is no forgiveness, for one, because you are not from here. So what is the system here really? The court explained there are certain things an attorney cannot control and remarked that Partida had stated no good reason for being dissatisfied with his lawyer. In response, Partida complained again it was not fair that they want to give me all that time for a mistake that was made when nobody was hurt or anything like that . . . . After confirming that Partida had nothing further to add, the court stated it had heard nothing to indicate Partida was being poorly represented and denied the motion.

This ruling was not an abuse of discretion. A trial court should grant a defendants Marsden motion only when the defendant has made a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation [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. Hines (1997) 15 Cal.4th 997, 1025-1026.) It is evident from the record that the prosecution offered Partida a plea bargain shortly before he raised the Marsden issue.[2] Although the court asked Partida repeatedly to explain why he was dissatisfied with his attorney, all of his complaints concerned this plea offer rather than anything his attorney had done or failed to do. Partida repeatedly stated his conduct did not warrant a lengthy prison sentence, but, as the trial court suggested, the terms of the prosecutions offer were beyond defense counsels control and did not, in themselves, indicate she was providing poor representation.

The record does not demonstrate that counsel provided inadequate representation or that Partida and his attorney had reached a point of irreconcilable conflict. (People v. Hines, supra, 15 Cal.4th at p. 1025.) Indeed, rather than describing points of contention or conflict, Partida equivocated in the hearing about whether he actually wanted a different attorney. He asked for assurance that counsel would take care of [his] case properly, and he even volunteered that she could continue representing him if she would do a good job. When the court asked if this comment meant Partida was satisfied with his attorney after all, he equivocated again, saying he did not know but suggesting he would be satisfied if the attorney decided to do a good job. On appeal, Partida claims an irreconcilable conflict was shown by his statement that counsel could not keep bringing [him] all these lies. Partida now characterizes this statement as an accusation that his attorney had been lying to him about the case. But, read in context, his remark about lies apparently referred to the prosecutions characterization of the gravity of his conduct. Partida said counsel had been bringing him lies just after he complained the sentence in the plea offer was too long because he had not threatened the victim or used a gun and had not murdered anybody. Partida argues the court should have asked questions to clarify what lies he was talking about (see People v. Hill (1983) 148 Cal.App.3d 744, 753-755), but its failure to inquire on this specific point was not an abuse of discretion. The court provided Partida ample opportunity to describe any lies, or points of disagreement with counsel, and he failed to do so.

Partida also contends the trial court applied an incorrect legal standard because the court stated that counsel was one of the best attorneys in the Hall of Justice. Although a judge cannot deny a Marsden motion solely on the basis of his courtroom observations about the attorneys skill and without taking account of the defendants specific complaints (Marsden, supra, 2 Cal.3d at p. 124), that is not what happened here. Again, read in context, the courts remark was clearly a response to Partidas statement that he would be satisfied with the representation if his attorney was really going to do a good job on his case. There is no indication the court based its ruling on an inappropriate ground, such as the attorneys reputation. Moreover, although Partida cites it as another example of an incorrect legal standard, the courts conclusion that counsel was representing Partida well was not erroneous. The constitutional basis for a Marsden motion lies in a criminal defendants right to effective assistance by appointed counsel (id. at pp. 123-124), and the courts statement merely reflected its finding that Partidas representation was adequate.

Finally, as evidence of an irreconcilable conflict, Partida describes three occasions during the proceedings when his competency to stand trial was questioned. In addition, he recites complaints he made about his attorney and another deputy public defender after the Marsden hearing. Such matters outside the Marsden hearing cannot provide an appropriate basis for reversal. Defendant may not attempt to make up for what was lacking in his motion by relying on matters subsequent to its denial. A reviewing court focuses on the ruling itself and the record on which it was made. It does not look to subsequent matters . . . . [Citation.] (People v. Berryman (1993) 6 Cal.4th 1048, 1070.)

II. Exclusion of Expert Neurological Testimony Not an Abuse of Discretion

Next, Partida claims the trial court erred in excluding expert testimony that he suffered from a neurological cognitive impairment. He asserts this error is of federal constitutional dimensions because it deprived him of his due process right to present a defense. We conclude the ruling was a proper exercise of discretion and there was no federal constitutional error.

Partida sought to introduce evidence that he suffered from a mental disorder, which he argued was relevant to the question whether he formed the specific intent required to commit certain of the charged offenses (i.e., burglary, digital penetration and use of a deadly weapon). This was consistent with Penal Code section 28, which provides that evidence of a mental disorder is not admissible to prove diminished capacity, but is admissible solely on the issue of whether or not the accused actually formed a required specific intent . . . when a specific intent crime is charged. (See also People v. Coddington (2000) 23 Cal.4th 529, 582-583 [explaining limited purpose for which evidence of a mental illness or disorder may be offered].) Partida did not offer the evidence to show diminished capacity, or to show a mistaken belief that the victim consented to his sexual acts. (See People v. Castillo (1987) 193 Cal.App.3d 119, 124-125 [evidence of impaired mental state is irrelevant and inadmissible to prove defendants belief regarding consent].)

At an Evidence Code section 402 hearing, neuropsychologist Patricia Perez-Arce testified that, based on Partidas performance on certain tests, she determined he suffered from a mild neuro-cognitive disorder that impaired his higher-order executive functions. Specifically, in complicated situations, Partida had difficulty abstract[ing] relevant information . . . and shift[ing] his attention between competing demands. . . . He also had some memory impairment and a tendency to perseverate, meaning he could not integrate new information to change his response to a problem. This meant, in Dr. Perez-Arces opinion, that Partida could not comprehend the serious nature of the charges against him, or that they could result in a long jail sentence. Although he recognized he made a mistake, Partida could not appreciate how wrong others would perceive his behavior to be or what the event would do to his life or anybodys life. On cross-examination, Dr. Perez-Arce agreed this was a minor impairment and not a primary mental disorder. She conceded that Partida knew what he was doing was wrong, knew it was serious, and knew he would receive some punishment for [it], but she questioned whether he understood how long his sentence could actually be.

After argument, the trial court ruled Dr. Perez-Arces proffered testimony was inadmissible under Evidence Code section 352. The court observed the evidence clearly indicated Partida knew what he was doing was wrong. Though he claimed he used the knife as a joke, and claimed he only entered the victims apartment to take a shower, the court noted the jury could evaluate such testimony as lay persons and did not need the help of an expert. The court concluded Dr. Perez-Arces testimony was not probative of any issue before the jury. We review this decision for abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Under this deferential standard, an Evidence Code section 352 ruling will be overturned only if the record shows the court exercised its discretion in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

The courts ruling was not an abuse of discretion. Evidence pertaining to a defendants mental disorder is admissible only to prove whether the defendant actually formed a specific intent (Pen. Code,  28), yet, as the trial court observed, Dr. Perez-Arces testimony offered nothing relevant on the specific intent issues before the jury. Her conclusions concerned Partidas inability to appreciate how much punishment he was likely to receive for acts that he admittedly knew were wrong. This evidence says nothing about whether Partida harbored a specific intent to sexually abuse the victim, or burglarize her apartment, or wield a weapon. Because Dr. Perez-Arce shed no light on Partidas specific intent to commit the charged crimes, her testimony was irrelevant, and the trial court did not abuse its discretion in excluding it under Evidence Code section 352.

Partida complains the trial court improperly relied on Evidence Code section 352 to deprive him of his right to present evidence of a mental disorder under Penal Code sections 28 and 29.[3] However, these Penal Code sections do not give criminal defendants a right to present expert testimony of a mental disorder; rather, they circumscribe the purposes for which such evidence can be admitted. Partida certainly had no right under Penal Code sections 28 and 29 to present irrelevant evidence.

Similarly, Partida complains exclusion of the neuropsychologists testimony deprived him of his constitutional right to put on a defense. This argument has no merit. As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.] (People v. Hall (1986) 41 Cal.3d 826, 834.) Although it is true in general that Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense (People v. Reeder (1978) 82 Cal.App.3d 543, 553), this does not mean a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value . . . . (Ibid.) To implicate the due process clause, the proffered evidence must have something more than slight relevance to the case; it must have some significant probative value. (Id. at pp. 552-553.) For the reasons discussed, Dr. Perez-Arces testimony had little to no probative value on issues relating to Partidas specific intent to commit the charged offenses. Moreover, the exclusion of her testimony did not prevent Partida from presenting a defense. He told the police he entered the victims apartment only to take a shower, and he suggested alcohol had clouded his judgment.

Finally, in light of Partidas confession that he committed the offenses and the wealth of evidence establishing he knew his conduct was wrongful, any error in excluding the neuropsychologists testimony is harmless under either the Chapman v. California (1967) 386 U.S. 18, 23-24, or People v. Watson (1956) 46 Cal.2d 818, 836 standards.

DISPOSITION

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

[1] Based on the jurys inability to reach a verdict, the prosecution dismissed the course of burglary allegation. ( 1385.)

[2] After the Marsden inquiry concluded and the deputy district attorney returned to the courtroom, the court asked her whether she would keep this offer open until Monday, when the case was set to begin trial. The offer, which was in fact kept open until the jury trial commenced, required Partida to serve 10 years in state prison.

[3] Penal Code section 29 states that an expert testifying about a defendants mental illness, disorder or defect shall not testify as to whether the defendant had or did not have the required mental states . . . . Rather, this question must be left for the trier of fact to decide. (Ibid.)