Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02F08252
ROBIE , J.
A jury found defendant Francisco J. Carranza guilty of committing five bank robberies involving nine victims and found he had a prior robbery conviction that qualified as a strike and a prior serious felony. The court sentenced him to 45 years in prison.
Defendant appeals, raising the following four contentions: (1) the prosecutor committed misconduct when she asked defendant about his confession to uncharged bank robberies in Seattle; (2) the prosecutor committed misconduct when she “pushed” defendant to say a law enforcement agent involved in investigating his case was lying and then “vouched” for the agent’s credibility in closing argument; (3) the cumulative effect of these errors requires reversal; and (4) the court erred in denying defendant’s motion to discharge his court-appointed attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118, based on an inadequate hearing. Disagreeing with these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
From June 2002 to September 2002, defendant committed five robberies of Bank of America branches in Sacramento.
Defendant was interviewed by Agents Brian Alvarez and Minerva Shelton of the Federal Bureau of Investigation (FBI) at the end of September 2002. According to Agent Alvarez, he read defendant his “Miranda rights,” and defendant said he understood them. During the interview, defendant gave the agents details about the Sacramento robberies. The agents showed defendant still photographs taken from surveillance video of the robberies, and defendant initialed the back of them.
Defendant testified at trial that it was the FBI agents who provided the details of the robberies to him during the interview. He admitted committing the Sacramento robberies only because Agent Alvarez promised to release his cousin and friends from custody if he did so.
DISCUSSION
I
The Prosecutor Did Not Commit Misconduct
In a series of related arguments, defendant contends: (1) the prosecutor committed misconduct when she asked defendant about bank robberies in Seattle; (2) the prosecutor committed misconduct when she “pushed” defendant to say Agent Alvarez was lying and then “vouched” for the agent’s credibility in closing argument; and (3) the cumulative effect of these errors requires reversal. Finding no prosecutorial misconduct, we reject these arguments.
We begin our discussion with the factual and procedural context in which these issues arose.
Before trial, defense counsel moved to “exclude any reference” to “prior bank robberies in Seattle” committed by defendant. When the court asked for the prosecutor’s response, she stated, “I will admonish the witnesses.” The court responded, “All right. Thank you.”
The questioning about which defendant complains occurred during defendant’s cross-examination after he had just testified that he confessed to the charged robberies in exchange for a promise by Agent Alvarez that he would release his friends and cousin from custody, and that Alvarez was the one who provided him with the details about the charged robberies. After this testimony, the prosecutor and defendant had the following exchange:
“[THE PROSECUTOR:] You gave [Agent Alvarez] information about Seattle, right?
“[THE DEFENDANT:] Yeah. I told him where I was living; that kind of stuff.
“[THE PROSECUTOR:] Did you ever go into detail about Seattle robberies you committed?
“[DEFENSE COUNSEL]: Objection. I would object. Relevance. We have had in limines about this.
“THE COURT: Overruled.
“THE DEFENDANT: Did that mean I answer?
“THE COURT: Yes.
“THE DEFENDANT: He told me about the Seattle robberies on Fourth Avenue and attempted robbery and that was all included in the thing he wanted me to sign.
“[THE PROSECUTOR]: So when he says that you try to begin the conversation that he had with you by going into detail about these three Seattle robberies he’s mistaken?
“[THE DEFENDANT:] He is lying.
“[THE PROSECUTOR:] He is lying. [¶] So you know nothing about these three Seattle robberies that you confessed to?
“[THE DEFENDANT:] I did not confess to anything. I just put my signature on what he asked me to put it on so he would let my friends and my cousin go.
“[¶] . . . [¶]
“[THE PROSECUTOR:] And so my question was is that your signature [on the waiver]?
“[THE DEFENDANT:] And my answer is I signed that, yes.
“[THE PROSECUTOR:] And it actually tells you your rights at the top, right?
“[THE DEFENDANT:] I didn’t read it. I don’t know.
“[THE PROSECUTOR:] Oh, you didn’t read it?
“[THE DEFENDANT:] No.
“[THE PROSECUTOR:] Was it read to you by the agents?
“[THE DEFENDANT:] No, it wasn’t.
“[THE PROSECUTOR:] So if they were to testify that they read you your rights they would be mistaken?
“[THE DEFENDANT:] They would be lying; same as they did in the report. I read it already.
“[THE PROSECUTOR:] So it’s your testimony today that all of Special Agent Alvarez’s testimony that you heard told was a lie?
“[THE DEFENDANT:] Some of it was true. The fact that he was there at those specific times and certain parts, you know, that he interviewed me, the fact they brought me -- that I was brought -- he was brought into the room I was at. He was mistaken on his dates. And the time of the different interviews. He said he interviewed somebody at a certain time in the middle of the day before I was arrested but in fact he interviewed them afterwards.
“[THE PROSECUTOR:] But when it came to you telling him you confessed to five different robberies he is lying?
“[THE DEFENDANT:] Yeah. I did not give him those ideas. He gave them to me, presented me with the paper. I signed them.
“[THE PROSECUTOR:] And when it comes to him saying that you confessed to three Seattle robberies, he is lying?
“[THE DEFENDANT:] Yes. And actually you have asked me that three times and I keep giving you the same answer.
“[THE PROSECUTOR:] Thank you. [¶] And he is the one who brought up the Seattle robberies not you, correct?
“[THE DEFENDANT:] Yes. As soon as I told him I came from Seattle and he said, ‘Oh, well, hold on.’ And he started looking in his folder for some more stuff. ‘Weren’t there some robberies similar to these?’ And that is where that came from. And [the other agent] was very familiar with the Seattle area and she seemed to be very familiar -- excuse me. [The other agent] was very familiar with the robberies in question something about Fourth Avenue, and I told them I was living in that area in the downtown area and that is when that came up.
“[THE PROSECUTOR:] And so when Special Agent Alvarez said you changed your appearance after seeing a picture of yourself in the newspaper he is lying?
“[THE DEFENDANT:] Well, he is mistaken to a point. I did change my appearance after I seen the picture in the newspaper and received several calls from my sister, relatives, and friends. I did not change it because I seen a picture of me. I changed it because I seen a picture that looked like me, and they were asking, ‘Is that you?’ . . . .”
In rebuttal, the prosecutor recalled Agent Alvarez who testified that when he began the interview with defendant, the agent was not aware of the Seattle bank robberies but that “almost immediately” after the interview began, defendant “wanted to start discussing some bank robberies in Seattle.” Agent Alvarez told defendant to “hold off” discussing the Seattle robberies until they had “take[n] care of the Sacramento robberies.” After defendant discussed the Sacramento robberies, defendant went into “[a]s much detail as he could recall” about the Seattle robberies. It was defendant who initiated the confessions. Agent Alvarez never told defendant he would get a deal if he cooperated because the agent was not “going to jeopardize this case and the work of other people making some kind of felonious promise or agreement or plea bargain with” defendant that the agent did not have the authority to make. Agent Alvarez never told defendant that “his friends and girlfriend . . . were going to go down for the robberies if he did not confess.”
A
The Prosecutor Did Not Commit Misconduct In Eliciting Defendant’s Testimony About The Seattle Bank Robberies
Defendant contends the prosecutor committed misconduct when she asked defendant about his confession to the Seattle bank robberies, both because the prosecutor agreed in limine to not to introduce this evidence and because the evidence was “inadmissible criminal propensity evidence.” In the same argument, defendant also contends the error in admitting the evidence violated his federal constitutional rights. Defendant is wrong that the prosecutor committed misconduct or violated his federal constitutional rights.
The applicable federal and state standards regarding prosecutorial misconduct are well settled. “‘A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” [Citations.]’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)
Here, while defendant is correct that the prosecutor agreed not to bring up the Seattle robberies, defendant is wrong that the prosecutor committed misconduct or violated his constitutional rights in asking defendant about those robberies or that the evidence was irrelevant.
As we have previously stated, defense counsel moved to “exclude any reference” to “prior bank robberies in Seattle” committed by defendant, and the prosecutor agreed to “admonish the witnesses.” While the People argue that this exchange shows that the prosecutor agreed only to admonish her witnesses not to refer to the Seattle bank robberies, we do not read the exchange so narrowly. Defense counsel’s motion was to exclude any reference to the Seattle bank robberies, and the prosecutor did not ask to revisit the issue should defendant elect to testify as she had moments earlier during another in limine motion to exclude any reference to defendant’s gang-related tattoo. In our view, a fair reading of the exchange was that the prosecutor agreed to exclude any reference to the Seattle bank robberies, which would encompass questioning defendant about them.
Our view, however, does not lead to the conclusion that the prosecutor committed misconduct or violated defendant’s constitutional rights when she asked defendant about the Seattle bank robberies. Prosecutorial action rises to these levels only if “‘it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process”’” or “‘involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” [Citations.]’” (People v. Gionis, supra, 9 Cal.4th at pp. 1214-1215.) The prosecutor’s conduct did neither, as the evidence was relevant by the time of defendant’s cross-examination.
We note it was the court that overruled defense counsel’s objection to the prosecutor’s question about the Seattle bank robberies, thereby allowing in the evidence.
Evidence of defendant’s confession was an admission of a party (Evid. Code, § 1220) and was relevant because it had a “tendency in reason” (Evid. Code, § 210) to refute defendant’s claims that Agent Alvarez provided him the details of the Sacramento bank robberies and that he confessed to those crimes simply to secure the release of his friends and cousin. Specifically, Agent Alvarez testified that his jurisdiction encompassed Bakersfield to Oregon and that he was not aware of the Seattle robberies until defendant mentioned them. The evidence that, contrary to defendant’s testimony, defendant volunteered the information about the Seattle bank robberies about which Alvarez would not have known tended to refute defendant’s similar claim that it was Alvarez who provided the details about the Sacramento bank robberies and that defendant’s confession was linked to securing the release of his friends and cousin. Because the evidence was relevant for these purposes, the prosecutor did not commit misconduct in eliciting the testimony regarding the Seattle bank robberies.
Given our finding that the prosecutor did not commit misconduct, we reject defendant’s argument that “[t]he prosecutorial misconduct violated [his] federal constitutional right to due process.”
B
The Prosecutor Did Not Commit Misconduct By Asking Questions About Agent Alvarez’s Veracity Or By Allegedly Vouching For The Agent’s Credibility In Closing Argument
Defendant contends the prosecutor committed misconduct when she “pushed” defendant to say Agent Alvarez was lying and then “vouched” for the agent’s credibility in closing argument. We disagree.
Preliminarily, we note that these contentions are forfeited because defendant failed to object to the alleged misconduct. Nowhere during defendant’s cross-examination or the challenged part of the prosecutor’s closing argument did defense counsel object that the prosecutor asked inappropriate questions regarding the agent’s veracity or that the prosecutor was vouching for the agent. “To preserve for appeal a claim of prosecutorial misconduct, the defendant must make a timely objection at trial and request an admonition to the jury. [Citation.] A defendant is excused from the necessity of objecting and requesting an admonition if either would have been futile.” (People v. Najera (2006) 138 Cal.App.4th 212, 224.) Contrary to defendant’s claim, an objection would not have been futile simply because the court previously overruled defense counsel’s objection regarding the Seattle bank robberies. The issues raised here were distinct from the admissibility of the Seattle evidence. There was no indication an adverse ruling on the confession issue would have meant the court would have ruled similarly on the other alleged instances of misconduct. For this reason, defendant’s claims of misconduct are forfeited. Even reaching the merits, defendant’s contentions fail.
As to the questioning about Agent Alvarez’s veracity, it was not the prosecutor, but rather defendant himself, who first introduced the idea that Agent Alvarez was lying. The prosecutor simply asked whether Agent Alvarez was “mistaken” when he testified that defendant “tr[ied] to begin the conversation . . . by going into detail about these three Seattle robberies.” Defendant responded that Alvarez was lying. We will not fault the prosecutor for later asking defendant about Agent Alvarez's veracity when defendant first claimed the agent was lying.
As to the alleged vouching for Agent Alvarez in closing argument, defendant’s argument fails because the prosecutor’s comments on Alvarez’s testimony were a fair representation of that testimony. Defendant’s misconduct argument is focused on the prosecutor’s statement in closing where she asked the jury if it made sense or was reasonable for Agent Alvarez to have made up the confession, committed perjury, subjected himself to criminal liability, and risked his career just to “get” defendant. These comments were fair based on Agent Alvarez’s testimony that he never told defendant he would get a deal if he cooperated because the agent was not “going to jeopardize this case and the work of other people making some kind of felonious promise or agreement or plea bargain” with defendant that he did not have the authority to make. (See People v. Lucas (1995) 12 Cal.4th 415, 473 [prosecutors are given wide latitude to argue broadly the law and facts of a case].) There was no misconduct.
C
There Was No Cumulative Prejudice
Defendant contends the cumulative effect of the alleged errors we have just discussed requires reversal of his convictions. Because we have found no cumulative errors, defendant’s contention fails.
II
The Court Did Not Err In Denying Defendant’s Marsden Motion
Defendant contends the court erred in denying his Marsden motion based on an inadequate hearing.
We begin our discussion with the context in which the motion was raised and then discuss the merits.
A
Factual And Procedural Background Of The Marsden Hearing
Before trial, the court referred defendant for a hearing to determine his competency to stand trial and appointed two doctors, including Charles Schaffer, to examine him. Dr. Schaffer provided a report to the court after he interviewed defendant. The court ultimately found defendant competent to stand trial.
After the first day of evidence, defendant brought a Marsden motion to discharge his attorney. His sole complaint was that Dr. Schaffer’s report contained confidential information that defendant had shared with his attorney and that his attorney had inappropriately disclosed that information to Dr. Schaffer.
The pertinent part of Dr. Schaffer’s report reads as follows: “[Defendant] acted appropriately in court prior to his admission to the second floor. He was respectful and rational at that time. He was able to state that he was on a methamphetamine binge at the time of his arrest. He admitted to robbing the banks to [defense counsel], but he never explained the reason for these robberies. He also had three pending charges in Washington State for bank robberies. He has gang-related tattoos.” (Italics added.)
At the Marsden hearing, defendant acknowledged he confessed to committing the bank robberies to defense counsel, but said that counsel told him, “‘Don’t worry. I’m your attorney. I can’t tell anybody this. It’s against the law. I’ll lose my license.’”
Defense counsel told the court that he believed he told Dr. Schaffer “what the facts were, that there was a very detailed conversation by [defendant] where he confessed to it and admitted the robberies.” He did not remember telling Dr. Schaffer that defendant confessed to him that he committed the crimes.
The court responded, “All right. [Defense counsel], as I understand then, what you are saying is that what you related to Dr. Schaffer . . . was not, by your recollection, the substance of any confidential communications you had with your client; but, instead, you were relating to Dr. Schaffer the fact that [defendant] had made a tape-recorded confession to the FBI agents in which he admitted during the conversation with the FBI agents to the robberies.”
Defense counsel agreed with the court’s characterization but clarified that the confession was not tape-recorded.
The trial court then denied the Marsden motion, finding that defense counsel “understands the significance of confidential attorney-client communications,” and he has told the court he did not discuss or disclose any confidential communications.
Defendant then asked whether they could “get Dr. Schaffer in here to get his opinion -- his version of this?” The court denied the request.
After a lunch recess, the court stated it had a “further opportunity to read Dr. Schaffer’s [report]” and believed that defendant had “misinterpreted that paragraph in alleging that [defense counsel] is the one who disclosed to Dr. Schaffer that he made these admissions. The way [the court] read that paragraph is that Mr. Carranza, the Defendant, admitted and disclosed the robbing of the banks to [defense counsel], but [defendant] admitted this to Dr. Schaffer.”
Defendant initially responded that he “didn’t speak to Dr. Schaffer,” but then read from Dr. Schaffer’s report that detailed a conversation between defendant and Dr. Schaffer in which defendant claimed not to know why he had been arrested and incarcerated for the current robberies.
The court then stated “this is simply another delay tactic on the part of the Defendant,” noting that the case had been pending for over three years, defendant had filed a previous Marsden motion, at one point had represented himself but then asked to have a panel attorney represent him, and at another point refused to meet with his attorney. The court told defendant that it was his choice whether to communicate with defense counsel, but it was not going to declare a mistrial or grant a continuance simply because he chose not to cooperate with defense counsel. Defendant said he understood.
Defense counsel then noted that during the recess he had tried to talk about the case with defendant but defendant was unwilling “to discuss any of the witnesses’ testimonies or any possible defenses with me.”
The court reiterated that it was defendant’s “choice to cooperate in his defense” and defendant “cannot attempt to invite a mistrial simply by his refusal to cooperate in his own defense.”
B
The Court Adequately Inquired Into Defendant’s Dissatisfaction With Counsel And Properly Denied The Marsden Motion
When a defendant seeks to discharge his court-appointed counsel on the basis of inadequate representation, the court must allow defendant to explain the basis of his claim and to relate specific instances of counsel’s inadequate representation. (People v. Smith (2003) 30 Cal.4th 581, 604.) “A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) We review the trial court’s decision denying defendant’s Marsden motion under the deferential abuse of discretion standard. (Id. at p. 1245.) As we will explain, there was no error either in the court’s Marsden inquiry or in its ruling.
As to the court’s inquiry into defendant’s complaint that his counsel revealed confidences to Dr. Schaffer, the record reflects the court was thorough in its investigation. The court first listened to defendant’s complaint about his counsel, read the pertinent part of Dr. Schaffer’s report, listened to defense counsel’s belief about what he had told Dr. Schaffer, clarified defense counsel’s position, re-read Dr. Schaffer’s report, explained its position about the report, and then listened again to defendant. This procedure satisfied the court’s duty to inquire into defendant’s complaint about his counsel. There was no error, constitutional or otherwise, in the court’s Marsden inquiry.
Nevertheless, defendant complains that the court should have brought in Dr. Schaffer to testify and allowed defendant to question the doctor about the contents of his report. We find no error for two reasons.
One, there was no indication Dr. Schaffer could come to court without unnecessarily delaying the proceedings. As we have noted, at the time of defendant’s Marsden motion, the case had been pending for over three years, the People had begun presenting evidence, and defendant had previously engaged in dilatory tactics relating to discharging his attorney.
And two, the trial court’s interpretation of the pertinent paragraph of Dr. Schaffer’s report, namely, that defendant “admitted and disclosed the robbing of the banks to [defense counsel], but [defendant] admitted this to Dr. Schaffer” was reasonable, and therefore, there was no need for Dr. Schaffer’s testimony. Notably, other paragraphs in the report discussing Dr. Schaffer’s contact with defense counsel begin with “[Defense counsel] stated . . . .” The paragraph which contains the statement that defendant “admitted to robbing the banks to [defense counsel]” does not begin with that phrase. The court therefore was correct in crediting defense counsel’s explanation that he did not remember telling Dr. Schaffer that defendant confessed to counsel that he committed the crimes.
As the foregoing discussion demonstrates, the trial court was correct in determining that defense counsel had not disclosed confidential information to Dr. Schaffer in violation of his ethical duties. The record also did not show “that counsel and defendant ha[d] become embroiled in such an irreconcilable conflict that ineffective representation [wa]s likely to result.” (People v. Jones, supra, 29 Cal.4th at pp. 1244-1245). As such, there was no error, constitutional or otherwise, in the court’s denial of defendant’s Marsden motion.
DISPOSITION
The judgment is affirmed.
We concur: RAYE , Acting P.J., BUTZ , J.