P. v. Cepeda

Filed 7/17/07 P. v. Cepeda CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEALS from judgments of the Superior Court of Los Angeles County. Michael M. Johnson, Judge. Affirmed.

Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant Charles Cepeda.

Neil Rosenbaum, under appointment by the Court of Appeal, for Defendant and Appellant Steven Gallegos.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

______________

In a jury trial, Steven Trigger Gallegos (Gallegos) was convicted of kidnapping for robbery (Pen. Code, 209, subd. (b)(1); count 1);[1] kidnapping during carjacking ( 209.5, subd. (a); count 2); two counts of second degree robbery ( 211; counts 3 & 6); carjacking ( 215, subd. (a); count 4); and attempted murder ( 667/187, subd. (a); count 5). With respect to counts 1 through 5, the jury found that Gallegos had personally inflicted great bodily injury and had used a deadly or dangerous weapon, a knife. ( 12022.7, subd. (a), 12022, subd. (b)(1).) In the same jury trial, Gallegos and Charles Casper Cepeda (Cepeda) were each convicted of two counts of first degree murder ( 187, subd. (a); counts 7 & 8), and simple kidnapping ( 207, subd. (a); count 9).

For the murder of Carmen Cepeda in count 7, the jury found special circumstances of financial gain and that the perpetrators had committed more than one offense of murder. ( 190.2, subds. (a)(1) & (a)(3).) For the murder of Steven Kimzey in count 8, the jury found special circumstances that the victim was a witness who was killed to prevent his testimony and that the perpetrators had committed more than one offense of murder. ( 190.2, subds. (a)(3) & (a)(10).) With respect to the murder and the simple kidnapping convictions, the jury found that Gallegos had personally discharged a firearm proximately causing death ( 12022.53, subd. (d)), and as to Cepeda, that a principal was armed with a firearm ( 12022, subd. (a)(1)).

In a court trial, the trial court made findings that Gallegos had a prior conviction that qualified him for sentencing pursuant to the Three Strikes law and that he had served a separate prison term. ( 667, subds. (b)(i), 1170.12, 667.5, subd. (b).)[2]

For Gallegos, at sentencing, the trial court imposed a determinate term of 22 years (a doubled determinate term of 11 years), plus two consecutive terms of life without the possibility of parole enhanced by terms of 25 years to life for the use of a firearm proximately causing death, plus a consecutive term of 14 years to life (a doubled life term).

For Cepeda, the trial court imposed two consecutive terms of life without the possibility of parole, with a one-year term applied to each term for the two enhancements of a principal armed with a firearm.

On appeal from the judgments, the defendants raise the following claims: (1) Cepeda contends that the trial court committed Marsden error when it failed to grant Cepedas several motions for the substitution of counsel (People v.Marsden (1970) 2 Cal.3d 118 (Marsden)); (2) Cepeda and Gallegos make different contentions as to the trial courts failure to sever counts 1 through 6 (the Jimenez and Manukyan crimes) from counts 7 through 12 (the murders); (3) Cepeda contends that he was denied his Sixth Amendment right to a speedy trial; (4) Cepeda contends that he was denied due process as the trial court failed to inquire into his mental competency, and trial counsel was constitutionally ineffective as he failed to investigate Cepedas mental competency; (5) Gallegos contends that he was denied due process and a fair trial by the admission of certain portions of the reporters transcript of E.A.s plea bargain; (6) Gallegos contends that the use of gang evidence denied him due process and a fair trial; and (8) Gallegos contends that the cumulative effect of the errors requires a reversal.

We find no merit in the contentions and affirm the judgments.

THE FACTS

I. The Prosecutions Case-in-Chief

A. Counts 1 Through 5: The Jimenez Kidnapping, Robbery, Carjacking and Stabbing (Gallegos Only)

In 2002, Guillermo Jimenez was living in his van, California license No. 4CNF020, near the intersection of Riverside Drive and Fletcher Street in Los Angeles, just northwest of the intersection of the 5 and the Glendale Freeways. He had previously lived in the Frogtown area of Los Angeles, just south and east of there on the other side of the 5 Freeway. On March 31, 2002, Jimenez was accosted by Gallegos late at night at a gas station as he was returning to his van from a family party. Jimenez had been drinking. Gallegos wanted a hot dog. Jimenez got a hot dog for Gallegos, but Gallegos disappeared.

Jimenez went to unlock his van door, and Gallegos appeared at his side with a knife. Gallegos forced Jimenez to the middle of the vans front seat between Gallegos and E.A, who climbed into the right front passenger seat. Gallegos drove off with Jimenez and E.A. in Jimenezs van. Jimenez was frightened. Nearby, Gallegos picked up a woman whom he and E.A. called Reeny. During the hours that followed, Gallegos had Jimenez disrobe, and he and E.A. robbed Jimenez of his personal property and money. Then, Gallegos and E.A. purchased drugs and alcohol, parked, and smoked the drugs. Gallegos eventually drove the van to the San Fernando Valley. There, Gallegos had Jimenez get out of the van, and Gallegos stabbed Jimenez with a knife several times in the chest.

Jimenez lost consciousness during the stabbing. When he awoke, Gallegos, the others, and the van were gone, and Jimenez stumbled to a gas station. An ambulance took him to a hospital where he was treated for three stab wounds to the chest. None of the stabbings inflicted injury on his internal organs, and he was released the next day. During treatment, Jimenezs blood alcohol level was 0.23.

Immediately after the carjacking, Jimenez identified Gallegos and E.A. in two six-pack photographic displays as his assailants. Jimenez claimed that prior to the incident, he had not met E.A. In court, Jimenez identified Gallegos as the assailant with the knife and identified E.A. in a photograph. At the preliminary hearing, Jimenez mistakenly identified Benjamin Gallegos as his male assailant. Jimenez said that after he was kidnapped, the male assailant was referred to as Sugar, and the male assailant referred to E.A. by her first name. Jimenez said that during the crimes, the male assailant wore a heavy mustache and had gothic letters tattooed across the back of his neck. At trial, neither Gallegos nor Benjamin Gallegos had a tattoo on the back of his neck.

On April 2, 2002, the police recovered the van near the kidnapping site, at 2425 Riverside Drive. Inside the van were 17 items with Karine Manukyans name on them. A fingerprint expert found latent fingerprints belonging to Gallegos and E.A. on the van.

B. Count 6: The Manukyan Robbery (Gallegos Only)

At about 3:15 p.m. on April 1, 2002, a man got out of a van and ran towards Karine Manukyan, who was walking to a bus stop in Hollywood. The man pummeled and kicked Manukyan until she let go of her purse and then returned to the van with the purse. The van was also occupied by a woman and a small female or female child, and the man quickly drove off.

Manukyan could not identify her assailant, but said that the first numeral in the vans license plate was a 4. Bystander Steven Parenago said that the assailant had a mustache. After the robbery, Parenago was shown a six-pack photographic display and told the detective that either the person in the No. 4 position (Gallegos) or the person in the No. 6 position in the display could have . . . been the guy. At trial, Parenago identified Benjamin Gallegos as the assailant, but was unsure of his identification. Bystander Tobias Hammon identified Gallegos in a post-offense six-pack photographic display and testified that he wrote down the last six digits of the vans license plate, CNF020. He believed that the first digit of the license plate was a 2.

C. The April 5, 2002, Murders (Cepeda and Gallegos)

Irene Cepeda is Cepedas mother, and she had Alzheimer s disease. She owned the residence located at 2207 Glendale Avenue, or at 2207 Glendale Boulevard, in Los Angeles. On April 5 and 6, 2002, Carmen Cepeda (Carmen), Cepedas sister and Irene Cepedas daughter, was living with and taking care of Irene Cepeda at the Glendale Avenue residence. Irene Cepeda had previously occupied the front bedroom of the residence. However, since Carmen and Irene Cepeda had recently returned to the residence, Carmen was now sleeping in the front bedroom. There was another occupant, Steven Kimzey, a boarder. Kimzey had brain damage arising from an automobile accident, and Carmen was also looking after him.

During the morning hours of April 6, 2002, Irene Cepeda found Carmen dead in her bed. Irene Cepeda contacted a neighbor, who telephoned the police. When the police arrived, Irene Cepeda could tell them nothing about Carmens death. At trial, a neighbor testified that at approximately 10:30 to 11:00 p.m. on April 5, 2002, he heard five or six loud noises that sounded as if someone was hammering on metal.

A deputy medical examiner testified that Carmen died from the infliction of nine shotgun wounds, some of which were fatal and caused massive bleeding. It appeared that the assailant had started shooting at Carmen from three feet away. He then closed the gap, repeatedly shooting her until he was standing over her.

Kimzey was missing from the residence. Earlier that morning, at about 1:00 a.m. on April 6, 2002, Kimzeys dead body was found under an overpass at 1745 North Spring Street in Los Angeles. A team of homicide detectives from another division had responded.

Kimzeys car was parked outside Irene Cepedas residence. Kimzey was still wearing his watch, his keys were on his belt, and his socks were pretty white, suggesting that someone had driven him to the underpass. From the condition of the body and its position, Detective Albert Marengo concluded that Kimzey had been shot at close range with a shotgun. The result was that the left side of Kimzeys head was blown off, scattering bits of flesh in all directions. The deputy medical examiner opined that Kimzey had been shot by a shotgun from within two feet, and the wound was immediately fatal. Kimzey had a receipt in his pocket for a repair to his car, which was parked outside Irene Cepedas residence, and the Kimzey detectives arrived at the 2207 Glendale Avenue residence to discover what they could about Kimzeys death.

Detective Burcher was assigned to investigate both deaths. At trial, he testified that on April 6, 2002, he examined the residence. Its front door and Carmens bedroom door had been forced open. There was a shoeprint on Carmens door that he was unable to match to any particular person. Nothing appeared to be missing from the residence, and there was no apparent ransacking, suggesting that burglary or robbery was not a motive for the shootings. The assailant or assailants apparently had not disturbed Irene Cepeda.

The police found one live and one expended 12-gauge shotgun shell outside the door to Carmens bedroom. Inside the bedroom were five expended 12-gauge shotgun shells. The expended shells were red and green in color. At least five of the six expended shells had markings suggesting that they had been fired from the same shotgun.

For about six months, the police investigation failed to turn up enough evidence for a prosecution. However, in August or September 2002, homicide detectives discovered that E.A. had been arrested in New Mexico on the warrant issued for her arrest for the Jimenez and Manukyan crimes. On October 16, 2002, homicide Detective Luis Rivera flew to New Mexico to interview E.A. E.A. revealed that Gallegos and Cepeda had told her that they had committed Carmens and Kimzeys murders. She waived extradition on the Jimenez-Manukyan case and was flown to Los Angeles. In Los Angeles, on October 23, 2002, she was interviewed by Detective Burcher about the murders and the Jimenez-Manukyan crimes.

During two tape-recorded statements, E.A. revealed that A.A., a member of Cepedas family, had permitted defendants to wash Cepedas car after the murders at his residence, and that after the murders, A.A. had the shotgun. Detective Burcher obtained a warrant for A.A.s arrest, and A.A. voluntarily came to the police station to speak to the detective.

A.A. had already received threats calculated to prevent him from cooperating with the authorities. Later, A.A. heard that Cepedas daughter had put out a $2,000 bounty on his life. Detective Burcher immediately made arrangements to relocate A.A. and his large family. In total, the detective expended slightly over $14,500 on the familys relocation.

The detectives served search warrants at Gallegoss and his brothers Partridge Avenue residences. They did not find the shotgun used during the murders.

D. E.A.s Trial Testimony

In March and April 2002, E.A. was Gallegoss girlfriend. In 2001, and later, in early 2002, E.A. had lived with Gallegos and Gallegoss mother, Delia Lopez (Lopez) in a 2920 Partridge Avenue residence in Los Angeles. Gallegoss brother, Benjamin Gallegos, lived next door.

E.A. described the events leading up to the murders. She said that in 2001, Gallegos was seeing a woman named Christina Casteleiro. At that time, Casteleiro purchased a shotgun for Gallegos that he called his jewelry and Christina. Casteleiro made the purchase for Gallegos because Gallegos was a felon.[3] E.A. believed that Gallegos kept the shotgun in his mothers closet inside a pipe. She claimed that she had never seen the shotgun, but she had seen its ammunition under a drawer in the bedroom dresser. The shotgun shells for the shotgun were red and green, and Gallegos called the shells his Christmas colors.

Cepeda and Gallegos became friends when they worked for the same security company. Gallegos had also obtained employment for E.A. at the security company. Gallegos told E.A. that in late 2001 or early 2002, he had lived with Cepeda at Cepedas residence.

In March 2002, E.A. was inside the Partridge Avenue residence, and she overheard Cepeda telling Gallegos outside that he wanted to kill his sister. In April 2002, Cepeda moved into the Partridge Avenue residence with her, Gallegos and Lopez. At that time, Cepeda told E.A. that his sister did him wrong and that the sister had taken a Cove Street residence from him.[4] Cepeda told her on no less than four occasions before or after the murders that he hated his sister. He made the comments in conjunction with mentioning his loss of the use of the residence that Irene Cepeda owned.

E.A. explained that before September 11, 2001, Cepeda was living in Irene Cepedas Glendale Avenue residence. After September 11, 2001, Cepeda was called up to serve in the military reserves. He left his girlfriend, Victoria Valenzuela (Valenzuela), in the residence with one of his adult children. Carmen evicted Valenzuela while Cepeda was out of state and moved in with her mother. In March 2002, Cepeda returned to Los Angeles and had nowhere to live. He moved in with A.A., a relative by marriage.

In March 2002, Gallegos told E.A. that he had talked to Cepeda about taking out his sister because the sister had crossed Cepeda. Gallegos claimed that Cepeda would pay a lot of money for the murder and said that he was thinking about doing it himself as he wanted the money to buy stuff, such as a house or a car. E.A. did not take Gallegoss talk seriously.

On March 31, 2002, and April 1, 2002, E.A. and Gallegos went on a cocaine binge. E.A. admitted that she had prior difficulties with cocaine use. She also admitted that she was present in the van during the Jimenez crimes and the Manukyan robbery. She said that Gallegos had committed the crimes. She told a slightly different version of the crimes than Jimenez had. She explained that she was so high during the crimes that she had only a blurry recollection of what had occurred.

After the binge, at a friends residence in their Frogtown neighborhood, they were high, and Gallegos beat her up with a stick. She went home to her mothers residence on nearby Marsh Street. Her mother had her admitted to a detoxification facility, and on April 2, 2002, E.A. entered a six-month residential rehabilitation facility, the Little House in Bellflower. During her trial testimony, she said that she had not used cocaine since the April 1, 2002 binge.[5]

About April 9, 2002, in the Little House facility, E.A. spoke to Gallegos by telephone. He told her that he and Cepeda did it and handled her, referring to Carmen. On April 13, 2002, Gallegos and Cepeda visited E.A., arriving in Cepedas white car, which was impounded later that afternoon on the defendants way home.[6] On April 14, 2002, E.A. left the rehabilitation facility. Gallegos and Cepeda picked her up in Gallegoss blue car. She prematurely left the program as Gallegos wanted her to come home and because she loved him.[7]

When the three of them arrived home at the Partridge Avenue residence, there was expensive food in the house, which was unusual. The men did not immediately reveal to her that they had committed the murders. Later, Gallegos and Cepeda told her that the expensive food had come from Carmens. That afternoon, Cepeda came out dressed in black as he was going to his sisters rosary. Cepeda wondered out loud how he was going to be able to cry, because he hated [his sister] that much. Then he said he could cry if they telephoned him on his cellular telephone during the service and played Spanish music.

Gallegos and E.A. drove Cepeda to the funeral, and during the service, Gallegos tried calling Cepeda on his mobile telephone, but Cepedas telephone was turned off.[8] While E.A. and Gallegos were waiting for Cepeda, Gallegos briefly commented on the stuff that they had did. Gallegos told E.A. that he had used his street sweeper, referring to his shotgun, to commit the murder. He talked about his Christmas colors, referring to the green and red shells she had previously seen under the drawer in the bedroom.

After the rosary, Cepeda made more comments about how he could not cry during the rosary as he hated his sister.

That night, when E.A. and Gallegos were alone, Gallegos told E.A. the details of the murders. He said that he and Cepeda had kicked in the door, and Carmen made a comment. Gallegos replied that he was the grim reaper. Gallegos said that he opened up on her, which E.A. concluded was a reference to emptying his shotgun into Carmen. Afterwards, Gallegos had picked up a few things inside the residence that they put in the car, and they found Kimzey. They took Kimzey to an underpass, where Gallegos shot him. After the shootings, Gallegos and Cepeda drove to A.A.s Montebello residence. Gallegos and Cepeda scrubbed the blood from the car with water and Clorox and spent the night there.

On April 15, 2002, Gallegos and E.A. dropped off Cepeda for Carmens funeral.

On April 18, 2002, Gallegos had to report to his parole officer. Gallegos knew that he had previously submitted a dirty urine sample and he expected to be arrested. Before his arrest, he told Cepeda to remember to pick up his jewelry. At that time, E.A. did not know what Gallegos meant. Later, she realized that Gallegos was referring to the shotgun. After the arrest, Cepeda drove her in his car to A.A.s, but no one was home.

Shortly after Gallegoss arrest, the two Partridge Avenue houses in which the Gallegoses lived were scheduled for demolition, so Lopez prepared to move. During that period of time, by telephone, Gallegos asked her to get rid of the clothing he wore on the night of the murder, and she did so. She discovered that the red and green shotgun shells were no longer under the dresser drawer.

While Gallegos was in jail, E.A. heard Cepeda tell Gallegos over the telephone that he could not pay Gallegos after all. Cepeda told Gallegos that the monetary settlement he had expected from his former wife in their divorce action had not materialized. Whatever he was owed had been offset by child support.

After Gallegos was jailed, Cepeda told E.A. the details of the murders. Cepeda said that he and Gallegos had entered the residence, and Gallegos shot Carmen. Cepeda said that he stood behind Gallegos during the shooting and that they shot the roommate at an underpass. Cepeda repeated that he had wanted to kill his sister and that he hated her because she had taken what belonged to him. E.A. and Cepeda drove to A.A.s several times to retrieve the shotgun, with no success. E.A. and Lopez wanted Cepeda to move, and eventually, he did.

Sometime later, A.A. and his family and Cepeda drove up to the Partridge Avenue residence in a van. Cepeda carried something long and black to Benjamin Gallegoss front door, the door opened, and Cepeda handed the item to whoever was inside. E.A. concluded that the item was the shotgun. E.A. took a shower as she had to go to work. When she walked out of the residence, the shotgun was sitting on the sofa. Lopez told E.A. to put it away, but E.A. refused to touch it. When E.A. came home after work, the shotgun was no longer there.

In July 2002, E.A. moved to New Mexico to join her mother, who was raising E.A.s children.

During E.A.s trial testimony, she acknowledged that she had been frightened of the codefendants and did not want to be a witness. Her arrest for the Jimenez crimes was her first contact with law enforcement. She told the jury that she had pled guilty pursuant to a plea bargain with the prosecution in which she obtained leniency in exchange for her truthful trial testimony. She said that she was motivated to take the plea in part because if she had served a life sentence, she would never see her children again. A reporters transcript reciting the terms of the plea bargain and the plea proceedings was admitted into evidence.

E. A.A.s Trial Testimony

A.A. testified for the prosecution. He said that he knew Cepeda as Caspar. Cepeda lived with A.A. and his wife briefly in 2002 after Cepedas release from the military. One night in April 2002, at 2:00 a.m., Cepeda and a friend, Trigger, arrived at his residence and wanted to wash Cepedas car and spend the night. A.A. let them do so as his wife, who worked at night, was not home. A.A. saw a pistol-gripped shotgun in Cepedas car trunk, and Cepeda asked if A.A. would store the shotgun for them. A.A. said, Yes, but he told them that they had to be out of the house before his wife came home the next morning. Cepeda and Trigger scrubbed out and washed the car, which had what looked like blood splatter all over it. Later, A.A. examined the shotgun that Cepeda had left in his storage area. There were red and green shotgun shells in the bag with the shotgun.

A week later, Cepeda and Trigger returned. Cepeda told A.A. that the police suspected he had killed Carmen. A.A. asked whether Cepeda had done so, and Cepeda smirked, laughed, and replied, Yeah. A.A. asked why, and Cepeda said that he did it because Carmen had kicked him out of the house. A.A. told Cepeda to remove the shotgun from his residence, and Cepeda moved the shotgun a week later. A.A. and his wife drove Cepeda to Frogtown to deliver it to Triggers residence. Trigger was not there, and Cepeda took the shotgun next door. E.A. was outside, and she spoke briefly to Cepeda.

A.A. said that he was concerned about testifying at Gallegoss trial because of retaliation against his family. He had received threats from his family and from his own gang, the Pico Nuevos. He explained that to testify and to cooperate with the authorities is not permitted in the gang culture. Snitches are killed. During cross-examination, A.A. acknowledged that he was a former heroin addict and that he had a criminal background.

Detective Burcher testified that A.A. had no agreement with the prosecution with respect to his testimony. However, the detectives understanding was that A.A. would not be prosecuted because A.A. had cooperated with the authorities.

F. Pam Bobadillas Testimony

Pam Bobadilla was one of Cepedas former wives. She testified that it was common knowledge within the family that after Valenzuelas eviction, Cepeda was upset because Carmen was now living in Irene Cepedas residence. Bobadilla told Cepeda that now that Carmen and her mother had moved in, Carmen was sleeping in Irene Cepedas former bedroom. Bobadilla felt responsible because she wondered whether that was how the assailants had known which bedroom to enter.

II. The Defense

Lopez, Gallegoss mother, testified to a partial alibi for Gallegos. She said that there was never a shotgun at her residence or stored in her closet, and she had never heard any talk about committing murder. She claimed that on March 31, 2002, at 11:00 p.m., she had picked up Gallegos from a neighbors residence. He was not there with E.A. Lopez drove him home, and Gallegos spent the following day April 1, 2002, with her or with her daughter celebrating his birthday. Lopez claimed that E.A. was not living with them during the last two weeks of March 2002. She said that during that period of time, E.A. was running around the neighborhood with her cocaine problem.

Valenzuela, Cepedas former girlfriend, testified that she was evicted by Carmen from Irene Cepedas residence and that the eviction upset Cepeda. Valenzuela claimed that she found a pistol-gripped shotgun in the trunk of one of their cars. She spontaneously gave it to Cepedas son R.C. She had told Bobadilla, however, that when she was moving after the eviction, she found the shotgun under her bed, and that after a conversation with Cepeda, she gave it to his son R.C.

A defense investigator testified that to access the pipe in which E.A. claimed Gallegos stored his shotgun, it was necessary to go up on the residences roof by ladder.

After Cepedas white car was impounded, it was sold to a man in Mexico. Considerably later, it was purchased by the police and returned to Los Angeles for a forensic examination. In April 2003, a criminalist discovered that he was unable to match the fibers on Kimzeys socks to the carpet in the car.

DISCUSSION

I. The Cepeda Marsden Motions

Cepeda contends that he was prejudicially deprived of his Sixth Amendment right to counsel when the trial court denied his Marsden motion because [he] and [his] counsel were embroiled in an irreconcilable conflict.

A. Background

1. June 23, 2004

On June 23, 2004, Cepeda complained about his trial counsel, Mr. Samuel Saltalamacchia (Mr. Saltalamacchia).[9] Cepeda said that he had instructed Mr. Saltalamacchia to file a severance motion so that he would not be tried with E.A. He was upset that his counsel had refused. Cepeda complained, as follows: Hes not actually looking out for my benefit. Hes shown me misconduct that just by him speaking certain things that Ive been suggest to him how to handle my case [sic], and Im not even pro per. Cepeda said that he had just started learning about his case to ascertain whether his trial counsel was representing him perfectly and that he thought that counsel was blowing smoke up [his] you know what.

The trial court asked Cepeda to be specific. Cepeda replied that he wanted no more postponements and that on one occasion, Mr. Saltalamacchia had even agreed to a continuance without asking his permission. To date, Cepeda had been locked down for two years and six months. During that time, Mr. Saltalamacchia had shown him only 120 of 1,000 pages of reporters transcripts. The disclosure was insufficient for Cepeda to figure what were fighting here.

The trial court asked for Mr. Saltalamacchias response.

Mr. Saltalamacchia explained that during their last appearance, the case was trailed within the period. It was anticipated that E.A. would cut her disposition, and as a result, defendants would be in a different procedural posture. He intended to speak to Cepeda about the continuance, but he did not see Cepeda again until the day before. Counsel had told Cepedas family what was going on.

As to the 120page complaint, Mr. Saltalamacchia believed that Cepeda was complaining that he had not seen all the discovery. Counsel said that sometimes Cepeda wanted to see the discovery and sometimes he did not. Mr. Saltalamacchia pointed out that giving an inmate materials on a case gave other inmates access to that information. Since E.A.s plea would in effect work the severance, that Cepeda was requesting, he saw no need to move to sever.

The trial court denied the Marsden motion. It said that defendants complaints related to tactical decisions. It observed that all counsel wanted a severance, and they all had been waiting for E.A.s plea before addressing that issue. On July 9, 2004, the trial court would make a ruling on the severance issue.

Cepeda and Mr. Saltalamacchia spoke together briefly. Mr. Saltalamacchia said that defendant would waive time.

2. June 6, 2005

Almost a year later, on June 6, 2005, Cepeda made another Marsden motion. In camera, Cepeda complained that (1) Mr. Saltalamacchia had ineffectively argued Cepedas bail motion, as well as Cepedas right to have telephone access to counsel, and (2) he had been waiving his right to a speedy trial under the belief that Mr. Saltalamacchia would fix these legal problems before trial commenced. Cepeda said: The sheriffs have interfered with my rights to counsel, without any legal justification. And of course, the D.A. benefits from that as it enhances his or her chance to win at trial, as my attorney/client relationship gets trampled and alienates me from my attorney. Prejudice has already happened as to have this trial with the violations of my rights already occurring, den[ying him] a fair trial and [the] right to counsel at trial. As to try again for the seventh [or] eighth time to fix this would continue to increase the extreme hardship and liberty interests.

Cepeda went on to complain that it went beyond unfair that he had been incarcerated incommunicado and in solitary confinement in the K-10 module with a no phone order for the past three years. He had been undermined by Mr. Saltalamacchia; the zealousness was just not there. Cepeda said that Mr. Saltalamacchia was now ready for trial, but Mr. Saltalamacchia was still advising him to waive time, and he was following his counsels advice. He said, [I]t infringes on my speedy trial rights because I follow his opinion to waive an empty promise to fix these simple problems.

Cepeda asserted that Mr. Saltalamacchia had not advised him as to any changes [in the case] or [as to] investigations, and he was being kept in the dark. Cepeda wanted to make a nonstatutory motion to dismiss on these grounds as he was being denied his Sixth and Fourteenth Amendment rights. He claimed that he had had no private communications with Mr. Saltalamacchia at the jail since incarceration. He urged that the proper remedy for the violation of his rights was a dismissal of his case, and Mr. Saltalamacchias three to four visits with him at the jail over a three-to-four-year period were insufficient to pass constitutional muster. He argued that the situation violated his rights to counsel, to effective counsel, to due process, to a speedy trial, and to access to the courts.

The trial court explained to Cepeda that a conclusion that Mr. Saltalamacchia was ineffective would not result in a dismissal. It would result in the appointment of new counsel. It asked Cepeda whether he really wanted new counsel.

Cepeda replied: Well, Im not very secure with my attorney at the present, but he did not want to waive time, and he knew that obtaining the appointment of new counsel would mean a waiver of time. Cepeda told the trial court that the appointment of counsel presented a Catch 22 for him, and he thought that the trial court could make a decision right here.

The trial court told Cepeda that they were within weeks of trial, and it inquired whether Cepeda truly wanted new counsel in light of the delay the appointment would cause.

Cepeda replied that he understood and commented, Well, even if I asked for a new lawyer, I wont be able to have no phone access to hire a new lawyer either.

The trial court said that it would assume for the moment that Cepeda wanted new counsel. It told Cepeda that it had been attempting to resolve the issue of the lack of telephone access to counsel and inquired whether Cepeda was still without access.

Cepeda replied that he had access to a programmed telephone during the period allowed for bathing. However, he was still unable to contact counsel because the telephone did not afford him enough time to dial counsel and then to input his access code before the telephone cut him off. The trial court asked whether he had informed the sheriffs department about the difficulty. Cepeda replied that he had received no official response to his complaints, and the deputies who were familiar with his court order had been rotated out. When he complained, the new deputies simply told him that he was housed in a jail location with no telephone access and that he was not entitled to use the telephone.

The trial court summarized Cepedas complaints were that he was not being kept sufficiently informed about his case and that he had not had enough communication with trial counsel. The trial court observed that Cepeda saw his trial counsel every time he made a court appearance. The trial court inquired whether Cepeda saw Mr. Saltalamacchia outside of court.

Cepeda replied, No, and explained that during the last year, Mr. Saltalamacchia had not visited him at the jail.

Mr. Saltalamacchia replied that he had made the bail motion, and it was part of their record. Mr. Saltalamacchia explained that he was coat-tailed[ing] all of
cocounsels motions. Otherwise, Mr. Saltalamacchia did not have a response to Cepedas claims.

The trial court inquired whether Mr. Saltalamacchia had ever received a telephone call from Cepeda.

Mr. Saltalamacchia replied in the negative and added that he had had problems with his own telephone. Mr. Saltalamacchia explained that the recent waivers of time were a courtesy because the case had to be postponed due to Gallegoss medical condition. He still had things to do in preparation for trial. He had to follow through investigating E.A.s background, and he wanted to make several requests of Carmens estate. He had not provided Cepeda with reporters transcripts, but he had received no trial court order to do so. He said, Earlier, there have been jail visits recently, although I dont have my calendar.

Cepeda submitted a personal written motion to the trial court.

The trial court commented that the bail motion had been made and denied. A speedy trial motion lacked merit because Cepeda had waived time, or a continuance was ordered with good cause as Gallegos was medically unable to participate in a trial. The trial court said, As for the telephone, Mr. Saltalamacchia had been diligent in making motions to obtain the proper telephone access. The sheriffs department had confirmed that the telephone to which Cepeda had access was working. The trial court did not recall ordering Mr. Saltalamacchia to provide Cepeda with transcripts and that it was discretionary with counsel. Even if it made such an order, the failure to deliver the transcripts would not demonstrate inadequate communication with a defendant. The trial court found that the level of communication or the meetings with counsel was constitutionally adequate.

The trial court denied the Marsden motion.

3. October 3, 2005

a. The Motion for a New Trial

After the verdicts, on September 26, 2005, Cepeda personally filed a motion, entitled, Motion for a New Trial [Non-Statutory].[10] In the motion, Cepeda requested a new trial, as well as a substitution of counsel to prepare and argue a new trial motion. Cepeda complained that Mr. Saltalamacchia was ineffective because when Cepeda previously wanted to make the nonstatutory motion to dismiss, trial counsel had misrepresented the motion as a Marsden motion, and no ruling was obtained on his personal motion to dismiss. In his motion, Cepeda claimed that his inability to express himself and Mr. Saltalamacchias conduct had deprived him of an opportunity to move to dismiss. Cepeda said that he was being held incommunicado in the jail, he had no access to counsel and the court, and that having ineffective trial counsel denied him due process of law and his right to counsel at all stages of the proceedings.

In the motion, Cepeda further asserted that Mr. Saltalamacchias legal visits and mail were insufficient for appropriate access to the court. Mr. Saltalamacchia had told him that he could not speak to the trial court personally, and that on certain issues, they had a better chance on appeal. Cepeda claimed that Mr. Saltalamacchias conduct, in conjunction with Cepedas mental stress, e.g., his K-10 incommunicado status and solitary confinement since October 2002, had left him incapacitated and unable to properly raise these issues personally. He complained that Mr. Saltalamacchia never argued that he was being denied due process because he was segregated in the K10 module, or that the conditions of pretrial incarceration prevented Cepeda from assisting counsel to prepare for trial.

Cepeda asserted that he had given Mr. Saltalamacchia many documents and the names of witnesses who could show that two other relatives, not defendant, were still fighting over his mothers residence and her estate. Such evidence might have disproved the special circumstance of financial gain. He claimed that his current confinement in administrative segregation, that is, being virtually held incommunicado and curtailing his access to counsel, caused extreme hardship, mental distress, and confusion. This confinement alienated him from counsel and the case and rendered him unable to participate in his defense. Mr. Saltalamacchia had not attempted to free him from this status, nor had counsel investigated defendants mental state as a result of confinement.[11]

b. The Hearing on the Motion

On October 3, 2005, the trial court read the motion for a new trial, which it characterized as a Marsden motion.

In camera, Cepeda repeated his complaint of a denial of access. He said that at the commencement of the case, the magistrate had limited telephone access because of the potential danger to the witnesses. To effect the order, Cepeda was placed in the K-10 module as that was the only location in the jail where inmates had no access to a telephone. Mr. Saltalamacchia had not visited him there, and Cepeda had had no control over his case and was unable to push counsel to do more for him. He felt from the beginning that Mr. Saltalamacchia did not believe him and that Mr. Saltalamacchia would not fight for him or represent him to the fullest.

Cepeda complained that even cocounsel, Mr. Bennett, had problems locating Mr. Saltalamacchia, and Mr. Bennett had tried to contact Mr. Saltalamacchia to see whether Mr. Saltalamacchia was filing a motion for new trial. Mr. Bennett was instructed not to visit Cepeda. Mr. Saltalamacchia did not visit him after the verdict, and he did not know whether Mr. Saltalamacchia was filing a motion for a new trial. He said that this was another perfect example of me not having any communication with the outside world, especially with his trial counsel.

Cepeda wanted new trial counsel and copies of his transcripts. He complained that Mr. Saltalamacchias indifference had left him in that K-10 hole, and he submitted on the basis of his written motion.

In response, Mr. Saltalamacchia acknowledged that he had not raised defendants K-10 status. Counsel explained that early in the case, Cepeda had been assaulted by two other inmates who had a knife. Mr. Saltalamacchia did not know whether the order for administrative segregation had anything to do with that, or whether there was another reason for the order. He understood that a friend of Cepedas, who often acted as a go-between, and Cepedas family, were visiting Cepeda. Mr. Saltalamacchia then commented on telephone privileges, saying as of that morning, Cepeda had been unable to make telephone calls, and that if he had told Cepeda not to speak, it was probably because of an order by the trial court. Mr. Saltalamacchia said that at trial, he had called all the potential witnesses.

Mr. Saltalamacchia explained that Cepeda was found liable for murder for financial gain on an aider and abettor theory because Gallegos acted for financial gain, so the potential evidence discussed in Cepedas motion was irrelevant. Counsels investigation showed that Cepeda had a settlement coming, but it was offset, and Gallegos was not paid.

Mr. Saltalamacchia had not raised mental incompetence because he believed that Cepeda was competent. However, at that point, he could request an order for a medical examination. He had told Cepeda that he had a right to testify, and his trial strategy of attacking the credibility of the prosecution witnesses rendered Cepedas testimony superfluous.

The trial court asked whether Mr. Saltalamacchia felt that he could proceed to represent Cepeda for sentencing. Mr. Saltalamacchia replied, Yes.

The trial court denied the motion. It said that all trial counsel had done a commendable job during the trial, including Mr. Saltalamacchia. The trial court went into detail with respect to several matters in which Mr. Saltalamacchia had been particularly diligent during trial preparation. It said that it had observed no lack of communication between Mr. Saltalamacchia and Cepeda; they had a working relationship.

The telephone issues, the trial court explained, had been frustrating for everyone. The prosecution had filed motions to limit telephone access to the defendants as there were legitimate concerns for A.A.s safety. That, and an inmate attack on Cepeda, had been the reasons for the K10 status. The sheriffs department had not facilitated access to counsel.

The trial court said that a motion to dismiss based on the decision in In re Grimes (1989) 208 Cal.App.3d 1175, 1182, regarding the denial of access to counsel, might have merit. However, the remedy for the lack of telephone access was a continuance of the trial until the situation was remedied. The defendants had not wanted the continuance. In any event, the crimes were so aggravated that a dismissal for a lack of telephone access was unwarranted.

Mr. Saltalamacchia had been asked whether he believed that he could adequately represent Cepeda during a new trial motion, and Mr. Saltalamacchia replied that he felt he could adequately represent Cepeda at sentencing.

Referring to Cepedas mental competence, the trial court said that Mr. Saltalamacchia had explained that he had no grounds for raising a doubt as to competence, and at this point, Mr. Saltalamacchia had requested the appointment of a psychiatrist.

The trial court observed that Cepeda had had an adequate opportunity to consult with his counsel once or twice a month face-to-face when he made court appearances. Consequently, there was no due process violation with respect to Cepeda having been kept incommunicado prior to trial. The trial court observed that Cepeda was unhappy about not having a doctors examination to determine his mental competency, and Cepeda claimed that his K-10 status had affected him mentally. However, despite Cepeda not being terribly talkative, it was apparent from what Cepeda had said in court that he was competent. When Cepeda spoke, he was readily understandable and to the point. Nevertheless, if presented with an order, the trial court would grant the request for a competency evaluation.

4. GallegossMotion for New Trial

On November 16, 2005, cocounsel Mr. Bennett filed a motion for a new trial on Gallegoss behalf. The grounds for the motion were Mr. Saltalamacchias constitutional ineffectiveness in representing Cepeda and its effect on Mr. Bennetts preparation of Gallegoss defense for the trial. In a declaration attached to the motion, Mr. Bennett said the following. (1) Before trial, Mr. Bennett had spoken to the deputy district attorney about his concerns that Mr. Saltalamacchia was unprepared for trial. (2) Pretrial, Mr. Bennett made a major effort to have Gallegos properly evaluated to persuade the prosecution to decline to seek the death penalty. Mr. Bennett went to all lengths to prepare a persuasive social history for Gallegos to present to the prosecutor. Mr. Saltalamacchia, on the other hand, engaged in no such preparation. He had told Mr. Bennett that he was not going to present any mitigation to demonstrate that Cepeda was not death-qualified. Mr. Saltalamacchia explained that he assumed that if the prosecution did not seek the death penalty for Gallegos, it would not do so for Cepeda. So he left Mr. Bennett with the laboring oar. (3) Mr. Saltalamacchia did not prepare an affirmative defense for trial and called no witnesses, even though there were other persons in the Cepeda family who potentially had a motive for killing Carmen. Raising suspicions that others might have killed her would have been helpful to both defendants, and Mr. Saltalamacchia presented no such evidence at trial. Mr. Saltalamacchias final argument was the worst that Mr. Bennett had ever heard. (4) Cepeda sent Mr. Bennett his motion for a new trial as Cepeda apparently had lost confidence in his own trial counsel. (5) For over three years, Mr. Saltalamacchia visited Cepeda at the jail a mere four times for a total period of two hours. Cepeda never had a psychological or psychiatric evaluation despite his complaints of mental health issues and a lack of competency. There were only two investigator visits, in one of which the investigator merely informed Cepeda that he had not been paid. This apparently was at the preliminary hearing stage of the case. (6) Mr. Saltalamacchias ineffectiveness had prejudiced Gallegoss defense. Mr. Bennett attached Cepedas previous motion for new trial, addressed as a Marsden motion on October 3, 2005, to his motion.

The prosecutor argued that Mr. Bennett did not have standing to make a motion for a new trial on Cepedas behalf. As to Cepedas motion for a new trial, Mr. Saltalamacchia had engaged the prosecution in extensive discovery: Mr. Saltalamacchia had tried to look into everything that there was in relationship to A.A. Cepedas complaints of inadequate preparation amounted to complaints about trial tactics, which were properly within the control of his trial counsel. Before trial, Cepeda had not complained of a lack of trial counsel preparedness. Guilt in the case depended on the credibility of E.A.s and A.A.s testimony, and whether there was sufficient corroboration. During trial, Mr. Saltalamacchia did a fine job of cross-examination. Mr. Saltalamacchia attempted to undermine witness credibility, and during trial, he showed no lack of familiarity with the facts of the case. Cepedas complaints failed to demonstrate prejudice.

The trial court commented that if there was any affirmative defense worth pursuing, nothing prevented Mr. Bennett from pursuing it for Gallegos. It observed that Mr. Bennett might have had more luck than Mr. Saltalamacchia in obtaining evidence on behalf of the defendants because Cepedas relationship with his family was now dismal.

Mr. Bennett added that several inmates from Cepedas module kept contacting him to tell him that Cepeda is not all there and that Cepeda needs help. Cocounsel argued that if there was any truth to that claim, now, not later, was the time to conduct that investigation. Mr. Bennett had asked Cepeda not to involve him in his complaints about his trial counsel, but Mr. Cepeda had persisted. Mr. Bennett had concluded that there was a total breakdown in that attorney-client relationship, and that the breakdown definitely had a prejudicial effect on Mr. Bennetts development of this case.

The trial court denied the motion for a new trial.

Mr. Saltalamacchia mentioned that Cepeda was raising what amounted to another Marsden motion. The trial court said that it would put Cepedas written Addendum in the court file, but on October 3, 2005, it had considered defendants post-trial Marsden motion and denied the motion. It would not rehash Cepedas complaints about counsel.[12]

After listening to Mr. Saltalamacchias comments, the trial court returned to its comments on the denial of Gallegoss motion for a new trial. It said that its conclusion was that Cepeda was manipulative, and Cepeda was trying to manipulate the court proceedings. There was no evidence to support a claim of mental incompetence. After considering the issue, it had decided that it was unnecessary to appoint a mental health professional to evaluate competency. Cepedas courtroom conduct indicated competence. Mr. Saltalamacchia was not the smoothest nor the most glib of attorneys, but Mr. Saltalamacchia was not constitutionally ineffective, and counsel had aggressively pursued the issues raised in Cepedas motion.

To the extent that Mr. Saltalamacchias performance was lacking, any poor performance did not prejudice the defense of either defendant. The trial court had concluded that the defendants were convicted because the evidence of guilt was overwhelming, and for no other reason. Mr. Saltalamacchia was not solely responsible for investigating the familys motives for killing Carmen; Mr. Bennett could have pursued the investigation himself. If Mr. Saltalamacchia had prevented Mr. Bennett from preparing for trial, the time to raise the issue was before trial.

B. The Relevant Legal Principles

When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Fierro (1991) 1 Cal.4th 173, 204.) (People v. Roldan (2005) 35 Cal.4th 646, 681.)

Disagreements about tactical matters, such as which defense to present or which evidence to offer, do not generally constitute an irreconcilable conflict between attorney and client, nor do they amount to inadequate representation. (People v. Dickey (2005) 35 Cal.4th 884, 922; People v. Welch (1999) 20 Cal.4th 701, 728-729.) Tactical disagreements do not by themselves constitute an irreconcilable conflict or fundamental breakdown in the attorney-client relationship. (People v. Welch, supra, at pp. 728729.) A defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney. (People v. Smith (2003) 30 Cal.4th 581, 606.)

The standard for substituting appointed counsel after a defendants complaint of ineffective trial counsel is the same, whether the Marsden motion is made before, during, or after the trial. (People v. Smith (1993) 6 Cal.4th 684, 696.)

C. The Analysis

On appeal, Cepeda asserts that Mr. Saltalamacchia did nothing about his solitary confinement for years awaiting trial and that these conditions had a deleterious affect on his mental state. He complains that Mr. Saltalamacchia did not see that he had adequate telephone access to counsel, paid him few jail visits, did little to investigate his defense, did nothing to keep him apprised of the events and the issues in the case, and continued the case although defendant wanted a speedy trial. He urges that Mr. Saltalamacchias performance was so deficient that cocounsel even used trial counsels performance to request a new trial. In ruling on the various Marsden motions, the trial court abused its discretion because it never focused on the irreconcilable conflicts between trial counsel and Cepeda, and Cepeda was constructively denied counsel and prejudice is presumed.

Our conclusion is that the trial court complied with the requirements of Marsden. In camera, it listened fully to Cepedas complaints. It acted well within its discretion by concluding that Cepeda had failed to make an adequate showing of the need to discharge his trial counsel. The trial court observed Mr. Saltalamacchias performance before and during the trial. Nothing in the cold record demonstrates constitutional ineffectiveness. In evaluating Mr. Saltalamacchias performance, the trial court additionally had the benefit of Cepedas complaints and Mr. Saltalamacchias explanations in response to those complaints.

The trial court properly concluded that Cepedas specific complaints only demonstrated permissible tactical decisions by Mr. Saltalamacchia. The trial court observed that although Mr. Saltalamacchia was not the best attorney the trial court had ever seen, trial counsel had performed effectively. Neither Mr. Saltalamacchia nor the trial court saw any evidence that Cepeda was mentally incompetent. Nevertheless, Mr. Saltalamacchia had attempted to obtain an order for a doctors examination when the issue arose after trial, but the trial court concluded that it was unnecessary. Usually, Mr. Saltalamacchia interviewed Cepeda in court during the monthly or bi-monthly court appearances, rather than visiting him at the jail. An appointed attorneys failure to visit his client at the jail does not alone demonstrate a lack of communication and the need to substitute counsel. And, the record supports the trial courts conclusion that no prejudice flowed from any poor performance by Mr. Saltalamacchia. The trial court observed that Mr. Saltalamacchia and Cepeda had a working relationship throughout the trial, and thus it had the discretion to conclude there were no irreconcilable differences between attorney and client.

There 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, 281282.) Nor does a disagreement between defendant and appointed counsel concerning trial tactics necessarily compel the appointment of another attorney. (Ibid.) Cepedas complaints did not signal a breakdown in the attorney-client relationship of such a magnitude as to jeopardize Cepedas right to effective assistance of counsel. (People v. Robles (1970) 2 Cal.3d 205, 215.)

II. The Motion to Sever

On appeal, Gallegos contends the trial courts failure to grant his motion to sever counts 1 through 6 from counts 7 through 12 denied him his state and federal rights to due process and a fair trial. Cepeda contends that the trial court had a sua sponte