Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF114257A, Louis P. Etcheverry and John R. Brownlee, Judges.
Judge Etcheverry presided over the trial and heard the motions for new trial; Judge Brownlee heard the motion for substitution of counsel on June 17, 2009.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted Justin James Erbacher of various counts related to the molestation of four young girls, including four counts of continuous sexual abuse of a child, in violation of Penal Code section 288.5, subdivision (a). He was sentenced to a prison term in excess of 100 years. He argues that his convictions must be reversed because the trial court erred by (1) admitting propensity evidence pursuant to Evidence Code section 1108, (2) not instructing the jury that it must unanimously agree on which acts he committed in violation of Penal Code section 288.5, (3) allowing portions of the testimony to be read back to the jury without his being present, (4) denying his motion for new trial after three of the victims recanted their trial testimony, and (5) denying his Marsden motion. We will affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise specified.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL SUMMARY
Trial testimony
We briefly summarize the testimony of the complaining witnesses only to explain the charges and the verdict. Additional evidence will be provided when necessary to discuss the issues raised by Erbacher.
Victim 1 is Erbacher’s adopted sister; she was 12 years old at the time of trial. She described numerous incidents of molestation that took place at her home, at Erbacher’s apartment, and a former home. Generally speaking, Erbacher would expose himself to victim 1, tell her to take off her clothes, and then lie on top of her. Victim 1 testified that Erbacher touched her more than 20 times in a bad way. She had observed Erbacher touch Victims 2 and 3 in a bad way more than 10 times. On one occasion Erbacher put his penis inside her vagina, on another occasion he put his finger inside her vagina, and on another occasion he put a marking pen inside her vagina. Victim 1 testified that on each occasion the penetration was slight. She also testified to an incident of sodomy. Victim 1 also had been molested repeatedly by her father.
Victim 2 also is Erbacher’s adopted sister; she was 12 years old at the time of trial. Erbacher touched her vagina with his penis. He also sodomized her and participated in acts of oral copulation. She saw Erbacher touch the private parts of Victims 1 and 3. Erbacher told Victim 2 that if she told anyone what he was doing to her, he would go to jail. Victim 2 was probably in the third or fourth grade (age seven or eight) when she was first touched by Erbacher. She remembered being touched by Erbacher in two of their former homes and in Erbacher’s apartment. She testified that Erbacher inappropriately touched her approximately 17 times.
Victim 3 also is Erbacher’s adopted sister; she was five days short of her 14th birthday at the time of trial. Victim 3 testified that Erbacher put his finger in her vagina approximately 30 times. Erbacher also forced her to perform oral copulation on him. She recalled seeing Erbacher touching Victim 2’s vagina and touching Victim 4. Victim 3 also had been molested by her father since she was about seven or eight.
Victim 4 was hospitalized at the time of trial. Her testimony was recorded at the hospital and the recording was played for the jury. Victim 4 testified that Erbacher began molesting her when she was approximately nine years old. Victim 4 and Erbacher were at a motel with their respective mothers. When their mothers were not in the room, Erbacher put his penis on Victim 4’s vagina. Erbacher touched Victim 4’s vagina with his hand about 30 times before he touched her vagina with his penis. Erbacher also made Victim 4 touch Victims 1, 2 and 3. Erbacher and Victim 4 also had intercourse on “[h]undreds” of occasions. Victim 4 explained how Erbacher would manipulate the house alarm and then sneak her out of the house. Victim 4 also described “[h]undreds” of occasions of oral copulation.
Section 1108 evidence
C.H. was 14 years old at the time of trial. She recalled that one time when she was at Victim 3’s house, Erbacher touched her vagina. She could not remember any details of the incident, including how Erbacher had touched her or whether she had her clothes on or off. She could not recall if she spoke with her mother about the incident.
C.H.’s mother, K.H., testified that in 1999 she was taking a bath with then five-year-old C.H. when C.H. “slithered” up to her face in an unusual manner, causing K.H. to become concerned. K.H. asked C.H. if anyone had touched her private areas; C.H. responded that Erbacher had licked her “privates.”
Defense case
Erbacher’s defense consisted of establishing an alibi for one act and establishing that the victims were untruthful, confused, and were accusing him of committing molestations that had been committed by Erbacher’s father.
The charges and verdict
Erbacher was charged with four counts of continuous sexual abuse of a child, in violation of Penal Code section 288.5, subdivision (a), with Victim 4 (count 1), Victim 3 (count 3), Victim 1 (count 6), and Victim 2 (count 8), the named victims. In addition, Erbacher was charged with three counts of committing a lewd and lascivious act upon a child under the age of 14, in violation of Penal Code section 288, subdivision (a), with Victim 4 (count 2), Victim 1 (count 7), and Victim 2 (count 9), one count of sodomy with a child under the age of 14 and more than 10 years younger than Erbacher, in violation of Penal Code section 286, subdivision (c)(1), with Victim 3 (count 4), and one count of oral copulation with a child under the age of 14 and more than 10 years younger than Erbacher, in violation of Penal Code section 288a, subdivision (c)(1), with Victim 3 (count 5). The information also alleged Erbacher was subject to an enhanced sentence pursuant to Penal Code section 667.61, subdivision (b) because the offenses were listed in Penal Code section 667.61, subdivision (c) and there was more than one victim within the meaning of Penal Code section 667.61, subdivision (e)(5) (counts 2, 4, 5, 7 and 9). The jury found Erbacher guilty as charged and found each enhancement to be true.
The statute was renumbered and the multiple provision is now found in Penal Code section 667.61, subdivision (e)(4). (Stats. 2010, ch. 219, § 16.)
First motion for new trial
Erbacher moved for a new trial pursuant to Penal Code section 1181, subdivision (8), arguing he had discovered new evidence. The newly discovered evidence consisted of recantations from Victims 1, 2 and 3.
An evidentiary hearing was held on the motion at which the three victims testified. Victim 1 testified that Erbacher did not molest her. She stated that she was being molested by her father, and she did not want to accuse him because he had said that if she told anyone he was molesting her, he would kill himself and they would lose their house. To avoid this consequence, Victim 1 accused Erbacher because he looked like her father. She hoped the accusation against Erbacher would cause her father to stop molesting her.
Victim 2 also testified that Erbacher had not molested her and she had lied at trial when she accused him of doing so. She admitted she was being molested by her father. She did not want to accuse her father of molestation because he had said he would kill himself if she did so. She did not know why she had accused Erbacher of molesting her, but, once she had, she was afraid to recant because people would be mad at her.
Victim 3 testified that at trial she thought it was Erbacher who had molested her, but she was confused and later realized that it was her father who had molested her. She admitted that before trial she knew her father was molesting her and testified that she did not want to tell anyone because he had said that if she did, he would kill himself and they would end up homeless. She could not recall why she accused Erbacher of molesting her.
The evidence established that before trial the father committed suicide after he discovered that one of the victims had accused him of molestation.
The trial court denied the motion for new trial. “Considering all the evidence that was presented and evaluating that testimony, and the demeanor of the child witnesses, including but not limited to [Victim 1] and [Victim 3]’s emotional responses to … hearing … their taped initial interviews, coupled with the robot-like testimony of [Victim 2], the confusion between the father and the defendant that took place, and as to which was the perpetrator, and the fact that two of them could give no explanation for accusing the defendant, the court is convinced that the newly remembered revelations of exculpatory evidence are a product of the children’s love for their mother and the realization that their brother may spend the rest of his life in prison. [¶] The court finds this recantation evidence is not credible or worthy of belief of a jury on retrial.… The court further finds that [if] this evidence [were] presented at a retrial a different result would not be probable. Therefore, the motion for new trial is denied.”
First Marsden motion
At the next hearing, Erbacher made a motion to relieve counsel, claiming that counsel was ineffective and requesting appointment of a new attorney to make a motion for new trial based on trial counsel’s incompetence. The trial court granted the motion.
Motion to withdraw as counsel for Erbacher
Shortly after appointment, newly appointed counsel made a motion to be relieved as counsel. The trial court granted this unopposed motion. Attorney Charles J. Soria was appointed to represent Erbacher.
People v. Pitchess (1974) 11 Cal.3d 531 (Pitchess).
A Pitchess motion was filed seeking various records from the personnel file of Bakersfield Police Detective William Darbee, the chief investigating officer for the prosecution. The trial court conducted an in camera review of Darbee’s personnel file and concluded there were no discoverable documents therein.
Second motion for new trial
Next, counsel filed a motion for new trial based on newly discovered evidence. This motion was made after the prosecutor discovered and disclosed that after trial Victim 4 made allegations that she also had had consensual sex with a foster brother for a period of three years beginning in 2005. Counsel argued that the physical evidence that Victim 4 had had intercourse could have been explained by this relationship, rather than the alleged relationship between Victim 4 and Erbacher. The foster brother accused by Victim 4 denied any sexual contact with her. The trial court denied the motion.
Third motion for new trial
Next, counsel filed a motion for new trial arguing that original trial counsel had been ineffective. The motion asserted that trial counsel had been ineffective because he failed to (1) challenge and/or investigate a claim that Erbacher’s sister-in-law had made a report to child protective services in 2002 about alleged abuse in the house, (2) question additional witnesses about alleged intimidation of the victims by Darbee, (3) question witnesses about Victim 4’s aberrant behavior that began before Erbacher moved into Victim 4’s household, which allegedly would have contradicted testimony given by Victim 4’s mother, and (4) investigate allegations by Erbacher that Victim 4 was being abused by her mother. The trial court denied the motion.
Second Marsden motion
Prior to holding a hearing on the Pitchess motion, the second motion for a new trial, and the third motion for new trial, Erbacher made a motion to relieve Soria. Erbacher contended, in essence, that Soria was not arguing in the motion for new trial all of the issues that Erbacher felt should be brought before the trial court. Erbacher also argued that counsel failed to request a continuance to allow additional investigation into his claims. Soria asserted that he had addressed in the new trial motion those issues that he felt had merit and refused to argue some of the grounds identified by Erbacher because they would be better addressed in a writ of habeas corpus. The trial court concluded that the dispute essentially was over tactics and denied the motion.
Sentencing
The trial court sentenced Erbacher to a total determinate term of 56 years, plus a consecutive term of 45 years to life. The sentence was calculated as follows: count 1-a term of 12 years; count 3-a consecutive term of 12 years; count 6-a consecutive term of 12 years; count 8-a consecutive term of 12 years; count 4-a consecutive term of six years; count 5-a consecutive term of two years; count 2-15 years to life; count 7-a consecutive term of 15 years to life; and count 9-a consecutive term of 15 years to life.
DISCUSSION
I. Admission of Testimony Pursuant to Section 1108
The prosecution moved before trial to admit the testimony of C.H. and her mother. The trial court granted the motion over Erbacher’s objection and the witnesses testified as summarized above. Erbacher makes three arguments asserting the admission of this evidence was erroneous, requiring reversal of the judgment.
Section 352Section 1108, subdivision (a) provides that in a prosecution for a sexual offense, “evidence of the defendant’s commission of another sexual offense” is admissible “if the evidence is not inadmissible pursuant to Section 352.”
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the Supreme Court rejected the defendant’s due process challenge to section 1108. (Falsetta, at p. 917.) In reaching its conclusion, the Supreme Court found important the requirement that such evidence be subject to scrutiny pursuant to section 352. “In summary, we think the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from defendant’s due process challenge. As stated in [People v.] Fitch [(1997) 55 Cal.App.4th 172], ‘[S]ection 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under … section 352. [Citation.] By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. [Citation.] This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that … section 1108 does not violate the due process clause.’ (Fitch, supra, 55 Cal.App.4th at p. 183, italics added.)” (Falsetta, at pp. 917-918.)
Erbacher argues the trial court erred in failing to exclude the propensity evidence pursuant to section 352. Section 352 gives the trial court discretion to exclude evidence if the probative value of the evidence is substantially outweighed by the probability that admission of the evidence will (1) necessitate undue consumption of time, (2) create substantial danger of undue prejudice, (3) confuse the issues, or (4) mislead the jury. The trial court has substantial discretion in excluding evidence under section 352. (People v. Thornton (2007) 41 Cal.4th 391, 428.) We review a trial court’s ruling on the admission or exclusion of evidence for an abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1130.) A trial court abuses its discretion if it acts in an arbitrary, capricious, or patently absurd manner that has resulted in a miscarriage of justice. (People v. Williams (2008) 43 Cal.4th 584, 634-635.)
Erbacher contends the trial court’s ruling admitting the propensity evidence was an abuse of discretion because the acts testified to were remote in time and the testimony lacked details about the alleged molestation of C.H. We disagree.
We begin by recognizing the proposed testimony was extremely probative. Erbacher was charged with molesting four young girls. His defense consisted, in large part, of attacking the credibility of the victims. The propensity testimony established that Erbacher molested another young girl by committing an act of oral copulation. At least two of the current victims also alleged they were orally copulated by Erbacher. The similarity of the acts committed by Erbacher on the victims and on C.H. allowed the jury to infer that Erbacher had a propensity to molest young girls, and did so in this case. This is exactly the type of case the Legislature anticipated in which such evidence would be utilized. (Falsetta, supra, 21 Cal.4th at pp. 911-912.)
Nor do we think the propensity evidence was remote. It is true C.H. testified that Erbacher molested her approximately nine years before trial, but the testimony also established the Erbacher had been molesting the other victims for a period of years. Victim 4 testified that Erbacher began molesting her seven years before trial. The two-year difference is insignificant and establishes that the propensity evidence was not so remote as to require its exclusion.
Finally, the propensity evidence was not so vague as to require its exclusion. Understandably, C.H. was unable to provide a detailed description of the molestation. She was five years old at the time Erbacher molested her, and the act occurred nine years before she testified. The testimony of C.H.’s mother, K.H., however, clarified what had occurred. K.H. was an adult and was experiencing an event that had to have been traumatic for any parent. Understandably, she had a better recollection of the event. The testimony of C.H. and K.H. was sufficient to permit the jury to evaluate the testimony properly. The trial court’s decision to admit the testimony was not arbitrary or capricious.
Due process
Erbacher also argues that admission of the propensity evidence violated his Fourteenth Amendment right to due process of law. He recognizes that the California Supreme Court rejected this argument in Falsetta, but claims Falsetta should be reexamined in light of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau).
Garceau was reversed on other grounds in Woodford v. Garceau (2003) 538 U.S. 202, 206-207.
As California Supreme Court precedent binds us, we reject this argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).) Moreover, even if we were to consider the argument on the merits, we would reject it because Garceau is not persuasive.
Garceau involved a petition for writ of habeas corpus filed by a defendant after his conviction and death sentence were upheld by the California Supreme Court. The district court denied the petition. Garceau appealed and the Ninth Circuit Court of Appeals reversed, finding that the instruction which allowed the jury to use propensity evidence for any purpose was erroneous (a conclusion with which the California Supreme Court agreed), and the error was prejudicial (a conclusion with which the California Supreme Court disagreed).
Garceau properly is limited to a consideration of the correct instruction that should be given when propensity evidence is admitted. We do not read Garceau as a prohibition of all propensity evidence, nor has the Ninth Circuit applied Garceau in this manner. Indeed, it has upheld the introduction of evidence of prior sexual crimes pursuant to Federal Rules of Evidence, rules 413 and 414 (28 U.S.C.) when a defendant is being prosecuted for a sexual offense. (U.S. v. Sioux (9th Cir. 2004) 362 F.3d 1241; U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018.)
All further references to rules are to the Federal Rules of Evidence unless otherwise specified.
In LeMay the Ninth Circuit utilized an analysis remarkably similar to that used in Falsetta when it rejected a due process challenge to introduction of prior acts of child molestation admitted pursuant to rule 414. The Ninth Circuit concluded that the balancing test required by rule 403 was the key to its holding. “Potentially devastating evidence of little or no relevance would have to be excluded under Rule 403. Indeed, this is exactly what Rule 403 was designed to do. We therefore conclude that as long as the protections of Rule 403 remain in place so that district judges retain the authority to exclude potentially devastating evidence, Rule 414 is constitutional.” (LeMay, supra, 260 F.3d at p. 1027.) Rule 403 is remarkably similar to section 352.
Rule 403 states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
It is clear that Garceau does not require exclusion of all propensity evidence. It also is clear that the Ninth Circuit has not concluded that all propensity evidence should be excluded.
Jury instructions
The trial court instructed the jury with CALCRIM No. 1191 on the use of the propensity evidence. This instruction informed the jury that if the prosecution proved the propensity evidence by a preponderance of the evidence, then it could utilize that evidence in determining whether Erbacher had a propensity to molest children.
The jury was instructed as follows: “The People presented evidence that the defendant committed the crimes of a lewd and lascivious act that were not charged in this case. That crime, a lewd and lascivious act, has been defined for you in these instructions. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. Proof by a preponderance of the evidence -- proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. And what that is, you believe that it is more likely true than not true. That’s what they are talking about there. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and, based on that decision, also conclude that the defendant was likely to commit and did commit the crimes as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged crimes. The People must still prove each element of every charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose, except for the limited purpose that the defendant has a pre-disposition to commit sexual offenses.”
Erbacher argues that by instructing the jury that it could consider the propensity evidence if the prosecution met the preponderance-of-the-evidence standard, the jury inevitably must have become confused and utilized the preponderance-of-the-evidence standard to convict him of the substantive crimes, in violation of his right to be convicted only if the prosecution proved the charges beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) This argument has been rejected by the California Supreme Court. (People v. Reliford (2003) 29 Cal.4th 1007, 1016.) We are bound by the decisions of the Supreme Court. (Auto EquitySales, supra, 57 Cal.2d at p. 455.) We thus reject Erbacher’s argument.
II. Unanimity
Erbacher was charged and convicted of continuous sexual abuse of a child, in violation of Penal Code section 288.5, subdivision (a). To establish a violation of this section, the prosecution was required to prove (1) Erbacher either resided in the same home as the minor or had recurring access to the child; (2) Erbacher engaged in three or more acts of substantial sexual conduct or lewd and lascivious conduct with the victim; (3) three or more months passed between the first and last act of substantial sexual conduct; and (4) the victim was under the age of 14 at the time of the acts. (Pen. Code, § 288.5, subd. (a); CALCRIM No. 1120.)
The jurors were instructed that while they must all agree that Erbacher committed three or more acts of substantial sexual conduct with each victim, they did “not all need to agree on which three acts were committed.” This portion of the instruction is consistent with Penal Code section 288.5, subdivision (b), which states that “To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.”
Erbacher argues that allowing the jury to convict him, even though the jurors were not required to agree on which three acts of substantial sexual conduct he committed, violated his right to a unanimous jury. (Cal. Const., art. I, § 16; People v. Collins (1976) 17 Cal.3d 687, 693.) Erbacher’s claim has been considered, and rejected, by this court in People v. Whitham (1995) 38 Cal.App.4th 1282, 1294-1297 (Whitham). Whitham concluded jury unanimity was not required because the statute punished a course of conduct, not a specific act. (Ibid.) Numerous cases agree with Whitham (e.g., People v. Adames (1997) 54 Cal.App.4th 198; People v. Gear (1993) 19 Cal.App.4th 86; People v. Avina (1993) 14 Cal.App.4th 1303) and no case disagrees with its analysis. Nor has Erbacher cited any case on point.
Instead, Erbacher argues that Richardson v. United States (1999) 526 U.S. 813 requires the jury to agree unanimously on which acts constituted the continuous course of conduct. We disagree. In Richardson, the Supreme Court was interpreting 21 United States Code section 848(a), which punishes anyone who participates in a continuing criminal enterprise. The issue was whether the statute required the jury to agree unanimously on the criminal acts the defendant committed in establishing a continuing criminal enterprise, or unanimously agree that the defendant participated in a continuing criminal enterprise. The majority concluded that the statute required the jury unanimously agree on the criminal acts committed by the defendant. (Richardson, at p. 824.)
The Supreme Court’s interpretation of 21 United States Code section 848(a) is irrelevant to our analysis. If, as Erbacher contends, the issue is ripe for federal review, his petition will be granted by the federal courts. We, however, reject his argument because of the overwhelming authority cited in Whitham establishing that the jury need not agree unanimously on which acts constitute the continuous sexual abuse of a child, in violation of Penal Code section 288.5.
III. Erbacher’s Presence During the Reading of Testimony
During deliberations, the jury asked for a portion of the testimony to be read back. Erbacher was present during the discussion about the issue between the trial court and counsel. Although the record is not clear, it appears, and we will assume for the purposes of this argument, that Erbacher did not waive his right to be present during the readback of the testimony. Erbacher claims the lack of waiver resulted in a violation of his right to be present during trial.
The right of a defendant to be present “at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure” is guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution. (Kentucky v. Stincer (1987) 482 U.S. 730, 745.) The issue is whether the court reporter’s reading of testimony to the jury is a critical stage of the proceedings at which the defendant’s presence would contribute to the fairness of the trial.
This court held in People v. McCoy (2005) 133 Cal.App.4th 974 that reading of testimony to the jury by the court reporter is not a critical stage of the proceedings. Our holding was premised on a lack of any authority from the United States Supreme Court suggesting that a court reporter reading testimony to the jury is a critical stage of the proceedings and California Supreme Court authority suggesting that such proceedings were not a critical stage of the proceedings. For example, in People v. Horton (1995) 11 Cal.4th 1068, in rejecting the defendant’s claim that error occurred because he did not personally waive the right to be present when the court reporter read testimony to the jury, the California Supreme Court stated, “The reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant’s opportunity to defend [citations], and nothing in the present record indicates that defendant’s personal presence would have assisted the defense in any way.” (Id. at p. 1121.)
In response to this authority, Erbacher cites three cases decided by the Ninth Circuit Court of Appeals, Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 815, United States v. Kupau (9th Cir. 1986) 781 F.2d 740, 742, 743, and Bustamante v. Eyman (9th Cir. 1972) 456 F.2d 269, 274. Only Turner addressed the issue before this court, and we are not persuaded by its reasoning. Moreover, even the Ninth Circuit has acknowledged that the United States Supreme Court has not recognized such a right, nor have other jurisdictions. (La Crosse v. Kernan (9th Cir. 2001) 244 F.3d 702, 707-708.) Therefore, even if we were not bound by the decisions of the California Supreme Court, which we are (Auto Equity Sales, supra, 57 Cal.2d at p. 455), we would reject Erbacher’s argument.
Overruled on other grounds in Tolbert v. Page (1999) 182 F.3d 677, 685.
Overruled in Campbell v. Wood (9th Cir. 1994) 18 F.3d 662, 672.
IV. Denial of Motion for New Trial
Erbacher’s first motion for a new trial was based on the recantations of Victims 1, 2 and 3. The trial court held an evidentiary hearing and denied the motion, finding the posttrial testimony unbelievable. Erbacher argues the trial court erred in denying the motion.
Penal Code section 1181 provides the trial court with authority to grant a defendant a new trial when specifically identified circumstances exist. Erbacher relied on Penal Code section 1181, subdivision 8, which permits a new trial “When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” Erbacher correctly asserts that the recantations by Victims 1, 2 and 3 was new evidence that could not have been discovered before trial.
The factors to be considered by the trial court when ruling on a motion for a new trial based on newly discovered evidence were first set out in People v. Sutton (1887) 73 Cal. 243 (Sutton). “To entitle a party to a new trial on the ground of newly discovered evidence, it must appear, -- ‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.’ [Citation.]” (Id. at pp. 247-248.) These standards have been reiterated on numerous occasions. (People v. Turner (1994) 8 Cal.4th 137, 212, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado); People v. Martinez (1984) 36 Cal.3d 816, 821.)
The standard of review we must apply also was established in Sutton. “‘Applications on this ground are addressed to the discretion of the court below, and the action of the court below will not be disturbed except for an abuse of discretion.’” (Sutton, supra, 73 Cal. at p. 248.) We must review each case on its own factual background and will not disturb the trial court’s ruling unless “‘“a manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.]” (Delgado, supra, 5 Cal.4th at p. 328.) When reviewing whether the trial court abused its discretion, we must judge each case on its own factual background. (Ibid.)
It appears the recantation testimony was newly discovered, not cumulative, could not have been discovered before trial, and was presented utilizing the best evidence available. The issue in this case is whether the recantation testimony rendered a different result probable on a retrial. The key to resolution of this issue, therefore, is whether the recantation testimony was credible.
When considering a motion for new trial based on recantation testimony, two additional principles are particularly apt. First, “It has long been recognized that ‘the offer of a witness, after trial, to retract his sworn testimony is to be viewed with suspicion.’ [Citations.]” (In re Roberts (2003) 29 Cal.4th 726, 742.) Second, the trial court, who is in the best position to do so, may consider the credibility of the recantation testimony when making its decision. (Delgado, supra, 5 Cal.4th at p. 329.)
In People v. Minnick (1989) 214 Cal.App.3d 1478, 1482 (Minnick), this court stated the standard the trial court should utilize when reviewing a motion for new trial involving recantation testimony.
“The role of the trial court in deciding a motion for new trial based upon a witness’s recantation is to determine whether the new evidence is credible, i.e., worthy of belief by the jury. That determination is made after a consideration of all the facts pertinent to the particular issue. The trial court is not the final arbiter of the truth or falsity of the new evidence. [¶] Once the trial court has found the recantation to be believable, it must then decide whether consideration of the recantation would render a different result on retrial reasonably probable. [Citation.]” (Id. at p. 1482.)
Here, the trial court clearly understood its task in ruling on Erbacher’s motion.
“The key issue in this case, of course, is credibility. Considering all the evidence that was presented and evaluating that testimony, and the demeanor of the child witnesses, including but not limited to [Victim 1] and [Victim 3]’s emotional responses to … hearing … their taped initial interviews, coupled with the robot-like testimony of [Victim 2], the confusion between the father and the defendant that took place, and as to which was the perpetrator, and the fact that two of them could give no explanation for accusing the defendant, the court is convinced that the newly remembered revelations of exculpatory evidence are a product of the children’s love for their mother and the realization that their brother may spend the rest of his life in prison.
“The court finds this recantation evidence is not credible or worthy of belief of a jury on retrial.… The court further finds that [if] this evidence [were] presented at a retrial a different result would not be probable. Therefore, the motion for new trial is denied.”
Erbacher urges us to find the trial court abused its discretion because it failed to consider the serious credibility problems that Victims 1, 2 and 3 had established as demonstrated by admissions that they lied, as well as inconsistencies between their pretrial statements and trial testimony.
We conclude the trial court did not abuse its discretion. The trial court heard all of the testimony at trial, as well as the testimony of Victims 1, 2 and 3 at the hearing on Erbacher’s motion. The trial court considered the victims’ demeanor when they testified at trial and at the hearing on the motion. It also considered other relevant factors in denying the motion, including the following: (1) Victims 1, 2 and 3 continued to accuse Erbacher after trial and recanted only after learning that Erbacher faced over 100 years in prison; (2) their mother’s emotional response upon learning of Erbacher’s potential sentence provided motivation for them to recant; (3) at least one of the victims admitted discussing recantation with the other victims; and (4) while two of the recanting victims testified that they accused Erbacher of molesting them so that their father would stop doing so, none of the recanting victims could explain why she testified against Erbacher at trial, long after her father was dead and could no longer abuse her. Nor could the recanting victims explain why they continued to assert Erbacher molested them after trial when there was no reason to do so. While there are numerous other factors the trial court could have relied on in finding the recantations were fabricated, these factors alone demonstrate that the trial court did not clearly and unmistakably abuse its discretion.
V. Denial of Second Marsden Motion
As outlined above, Erbacher successfully moved the trial court to dismiss appointed counsel after the first motion for a new trial was denied so that he also could move for a new trial alleging he had received ineffective assistance of counsel. Soria eventually was appointed; he filed two motions for new trial, one alleging trial counsel was ineffective and the second on the basis of newly discovered evidence. Before the hearing on the second and third new trial motions, Erbacher moved to have the trial court dismiss Soria as his counsel. A second Marsden hearing was held and the trial court denied the motion. Erbacher argues that the trial court erred in denying his motion.
In a Marsden hearing, a defendant seeks to discharge his court-appointed counsel on the basis of inadequate representation. The trial court must allow the defendant to explain the basis of his claim and to relate specific instances of counsel’s ineffectiveness. (People v. Smith (2003) 30 Cal.4th 581, 604.) Disagreements over tactical decisions do not entitle the defendant to a new attorney. (People v. Hart (1999) 20 Cal.4th 546, 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. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245 (Jones).)
We review a denial of a Marsden motion for an abuse of discretion. (Jones, supra, 29 Cal.4th at p. 1245.) “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 defendant’s right to assistance of counsel.” (People v. Webster (1991) 54 Cal.3d 411, 435.)
We have reviewed the transcript of the hearing on Erbacher’s motion, but need not recite all of the grounds urged by Erbacher because he argues only two issues. The first relates to a potential witness. Erbacher urged Soria to interview the potential witness, but Soria did not do so. Erbacher argued that the failure to do so entitled him to new appointed counsel. Soria responded that he made some unsuccessful attempts to locate the potential witness but primarily felt that the issue would be better preserved through a petition for writ of habeas corpus. The trial court concluded that Soria’s decision not to pursue the potential witness for inclusion in the motion for new trial was a tactical decision.
We agree with the trial court. First, Erbacher presented no evidence of the potential witness’s proposed testimony, or how she could help his case. Second, the issue of the lack of testimony from the potential witness, and potential ineffective assistance of counsel based thereon, was preserved for review. It has been said on numerous occasions that a claim for ineffective assistance of counsel is more properly addressed in a petition for writ of habeas corpus. “[N]ormally a claim of ineffective assistance of counsel is appropriately raised in a petition for writ of habeas corpus [citation], where relevant facts and circumstances not reflected in the record on appeal, such as counsel’s reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel’s ‘representation fell below an objective standard of reasonableness, ’ and whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 111.) Therefore, sound tactical reasons existed for not pursuing the potential witness at that time.
Next, Erbacher argues that the trial court erred in denying his motion because it relied on Soria’s extensive experience in denying the motion. Once again, we disagree.
This argument is based on a narrow reading of the record. During the hearing, Erbacher asserted approximately 19 grounds of disagreement with Soria about how the case was being handled. Many of the assertions were factually inaccurate or determined by Soria to be unsupported by the record. Many of the assertions were based on Erbacher’s perception of testimony that is not supported by the record. Many of the assertions related to tactical decisions that Soria had to make.
It is apparent from Erbacher’s assertions that he had been doing legal research on his own, and probably discussing matters with other “jailhouse lawyers.” The trial court confirmed that Erbacher had been doing legal research. After listening to all of Erbacher’s assertions, the trial court asked Soria how long he had been practicing law. The trial court then addressed the merits of Erbacher’s motion.
“Well, Mr. Erbacher, in a Marsden hearing, what I have to determine is whether or not representation by your present counsel, Mr. Soria, would substantially impair or deny your right to effective assistance of counsel now.
“Not necessarily what happened back with [trial counsel]. All right?
“But whether keeping Mr. Soria would affect your effective assistance of counsel.
“Mr. Soria has been doing this a long time. And case law on a Marsden is very clear that tactical disagreements between the attorney and the client do not qualify as good grounds for a Marsden. And neither does whether or not you like counsel’s advice as to how things should proceed here.
“I understand you’re unhappy with [trial counsel’s] representation of you at the trial. And it sounds like there may have been, indeed, some problems there. But how Mr. Soria proceeds on his ineffective assistance of counsel motion and whether he wants to include things in a motion or go by way of writ are clear tactical decisions on behalf of Mr. Soria, who’s got 33 years of experience.
“And on that motion or that basis, sir, I’m going to deny your Marsden motion.” (Italics added.)
It is clear that the trial court was not basing its denial of Erbacher’s motion on Soria’s experience, but instead was attempting to explain to Erbacher that while he, Erbacher, may have spent considerable time doing his own legal research, the tactical decisions in the case were to be made by Soria, and he had considerable experience in making those decisions. In other words, the trial court was attempting to explain to Erbacher that his experience in doing legal research did not qualify him as a legal expert, especially when compared to Soria’s experience.
As both grounds asserted by Erbacher fail, we conclude that the trial court did not abuse its discretion in denying Erbacher’s second Marsden motion.
Erbacher also asserts that reversal is required because of the cumulative effect of the various errors that occurred at trial. Having found no error, we necessarily reject his claim of cumulative prejudice.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., FRANSON, J.