Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF087852B
HULL, J.After two individuals were shot and killed in their home, an information charged defendant Christopher Howard Jones and codefendant Joel Magana with murder, robbery, burglary and conspiracy to commit those crimes. (Pen. Code, §§ 182, 187, 211, 459; unspecified statutory references that follow are to the Penal Code.) A jury convicted defendant Jones of robbery, burglary and two counts of murder, and found charged firearm enhancements and special circumstances true, but was unable to reach a verdict on the conspiracy charge. The trial court dismissed that count, and sentenced defendant to an aggregate sentence of 56 years to life plus two consecutive life sentences without the possibility of parole.
The jury acquitted codefendant Magana of murder and robbery, but was unable to reach a verdict on other counts. In a retrial, a jury convicted him of burglary and conspiracy to commit murder, robbery, and burglary, and found charged firearm enhancements to be true. We recently affirmed these convictions in People v. Magana (May 2, 2007, C049955 [nonpub. opn.]).
This appeal involves only defendant Jones. He contends that (1) the trial court failed to conduct the inquiry required under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) before denying defendant’s motion for new counsel; (2) the trial court erroneously denied his Batson-Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)); (3) the trial court erred in denying his motion to sever his trial from that of codefendant Magana; (4) the trial court violated his constitutional rights by erroneously excluding impeachment evidence; (5) the prosecution withheld evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady); (6) his attorney’s failure to recall a witness constituted ineffective assistance of counsel; (7) the trial court erred in admitting crime scene and autopsy photographs into evidence; (8) cumulative error compels reversal; and (9) the court erred in imposing a parole revocation fine. We find merit in two of defendant’s claims: error occurred during the Marsden hearing, and no parole revocation fine should have been imposed. We therefore remand to the trial court with directions.
Facts and Proceedings
The victims, Kevin and Sabrina Dahnke, were found shot to death in their home in Lodi. Two handguns, a .44 caliber and a .38 caliber, were involved in the incident.
Investigators were soon contacted by Scott F., who told them that defendants might have been involved in the killings. Kevin was a known marijuana dealer. According to Scott, Kevin had threatened to “jack” a friend who also sold marijuana. Several people, including Scott and defendant Magana, had talked about making a preemptive move, and Magana said he could get guns.
The direct targets of the alleged “jack” soon dropped their plans, but Magana told Scott that he had obtained guns. A day or two later, Magana approached Scott to ask if he was interested in following through on the original plan. When Scott declined, Magana said he would “get [defendant] to do it with him.” Magana and defendant were good friends who were “always together.” They both worked the night shift at Wal-Mart.
Two days before the murders, Scott went to defendant’s apartment and found defendant and Magana in a bedroom, looking at a .44 caliber and a .38 caliber handgun.
On the night of the murder, Magana called Scott and asked him to meet Magana outside. The two talked on the walkway between their apartments. Magana said he was “going to go shoot Kevin and Sabrina, ” and he showed Scott some potatoes that he said he was going to put on the barrel of the gun. Scott told him there was “no chance of just robbing them, that he was going to have to kill him. Magana responded, “[H]e’s already dead.”
During this conversation, defendant was sitting in the passenger’s seat of Magana’s car.
Magana told a friend that he and defendant were going to be going to work about one hour late.
Magana and defendant drove to the victims’ home. At about 11:00 p.m., neighbors of the victims heard gunshots. They did not see anyone, but saw a car matching Magana’s parked in the victims’ driveway.
Defendant and Magana drove to the home of defendant’s sister in Pittsburgh, California. Her fiance had a reputation as a “gang banger” who sold drugs and arms. Magana called his employer from Pittsburgh and told him that he and defendant were going to be late due to car problems. Neither made it to work that night. Defendant and Magana eventually drove home.
The next morning, a neighbor discovered the victims’ bodies. Kevin had been shot four or five times. Sabrina had been shot three times, including once at very close range. A piece of potato was found on the couch.
The same morning, Magana went over to Scott’s apartment. Magana was limping and had a large bag of marijuana that he said he had gotten from Kevin. Scott noticed a small amount of blood behind Magana’s ear.
Later that day, Scott contacted the police.
Officers arrested defendant and Magana. Testing revealed that both men had small amounts of gunshot residue on their hands.
Large quantities of marijuana were found in defendant’s apartment and that of Magana. Officers found clothing in a dumpster outside Magana’s apartment complex. Bloodstains on a jacket matched Kevin’s genetic profile; bloodstains on a pair of tennis shoes matched Sabrina’s. This clothing had been worn by Magana. A bloodstain on the passenger’s seat of Magana’s car also matched Sabrina’s genetic profile.
Defendant and Magana were both charged with two counts of murder, robbery, burglary, and conspiracy to commit these crimes. The information also alleged various firearm enhancements and special allegations.
The prosecution theorized that both defendants had been involved in the shootings, each using a different gun.
Defendant did not testify at trial but argued that he had not been involved in these events. Instead, he suggested that Magana had committed the crimes with Scott or the dealer Kevin was allegedly about to “jack.”
Magana testified at trial and placed all responsibility for the murders on defendant. He denied shooting either Kevin or Sabrina, and said he had gone with defendant to Kevin’s house simply to buy marijuana. He was taken completely by surprise when defendant pulled out a weapon and shot Kevin. He said Kevin lunged toward him and as the two grappled, Sabrina entered the room and threw something at Magana. The two men fell to the floor, and Magana heard several more gunshots. Sabrina fell to the floor.
Magana said he fled the scene and drove away, but came back for defendant, who then held a gun on him and ordered him to drive to Pittsburgh. Magana said he handled the guns when he got them out of the car.
Discussion
I
Marsden Motion
Before trial began, defendant made a Marsden motion to replace his appointed attorney. After a hearing, the trial court denied that motion. On appeal, defendant contends that the trial court failed to make the necessary inquiries before ruling on his motion. We agree.
“Marsden motions are subject to the following well-established rules. ‘“‘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 attorney’s 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 [citations].’ [Citations.]”’ [Citation.] Denials of Marsden motions are reviewed under an abuse of discretion standard. [Citation.] Denial ‘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. [Citations.]’ [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
At the Marsden hearing, the following colloquy took place:
“THE COURT: Okay. What is the problem you are having with Mr. Shaver [defense counsel]? “DEFENDANT JONES: I think he’s inadequate for my defense. “THE COURT: Anything specific? “DEFENDANT JONES: Yeah. I’ve asked him to follow up on certain parts of my investigation and I haven’t got no response to [sic] him yet--or at all.” “THE COURT: You know, I have to say something, I’ve been involved in this case since the arraignment . . . . So that’s about one year and four months. [¶] Mr. Shaver--I’ve had Mr. Shaver on a number of cases. He’s been an attorney for many years. He is a very well-respected attorney, hard-working attorney, capable attorney. [¶] And in this case, I have to say, . . . he has been pushing as hard as he could push on your behalf in this case. He has been doing a lot of things in your behalf. He is--he is working very hard on your behalf. I don’t know if you appreciate it, but I-- “DEFENDANT JONES: I appreciate it. “THE COURT: I doubt that you would find another attorney who is going to work even as hard. [¶] And you know what? If you got another attorney, I’d say there’s a real good chance that that attorney wouldn’t be able to work nearly as well as Mr. Shaver has on this case. I mean, that’s just--I just want you to know that. “But how--has he--I assume he’s been talking to you on a regular basis about the case? “DEFENDANT JONES: No. He is supposed to came [sic] out last week. “THE COURT: Uh-huh. “DEFENDANT JONES: He didn’t come out. I’ve asked him to send investigators out to certain parts of my case, and haven’t happened.”
The court then asked defense counsel if there was anything he wanted to say, and Attorney Shaver replied by outlining several times he had met with defendant, noting that he had been bringing defendant “what he wants from testimony, transcripts, crime--sanitized crime reports, that kind of thing. And I’ve--he’s gone through several hundred pages of the case. He hasn’t gone through everything, but he’s gone through the more important things.
“And I guess I’m just not aware of what he’s talking about. I know that I’m pretty--I know that I’m pretty proud of my motion record on this case. I’ve got some things that were kept out. I mean, I don’t like to come into court and blow my own horn, but . . . I take particular pride in the fact that this case is no longer a capital case. . . .”
The court interrupted to be sure that defendant understood that his attorney had “persuaded the district attorney not to go for the death penalty.”
Attorney Shaver continued by describing the other motions that had been made in the case. He noted that he had successfully moved to exclude “some statements that very adversely impact on my client, ” but acknowledged that defendant’s parents were very disappointed that the motion to sever the case from that of defendant Magana had been denied. He added that “they felt that if they had had money to hire an attorney, that that would have happened.”
Attorney Shaver concluded: “And I, you know, I’m pretty proud of my track record on this case thus far. And of the--and the assistance that I’ve gotten from my office on it. And I don’t think I have anything to apologize for. [¶] I think I’m trying to--I’m retaining experts, I’m trying to get ready to give my client the best possible representation I can give him. And I’m sorry he feels this way.”
The court denied defendant’s motion, explaining: “Mr. Jones, this is a serious case. Even though it’s not a death penalty, it’s still a serious case. But having seen your attorney in the last one year and four months on this case, I can assure you, he is working very, very hard for you. He’s doing a lot of things for you. I mean, he may not be successful on every single motion, but no attorney is going to be successful on every motion.
“And I can tell you that I don’t care who the attorney would have been on that motion to sever, there aren’t a lot of cases where a motion to sever is granted. That just doesn’t happen very often.
“In this case, we had a motion about statements and I made a ruling that the statements could not be used in the trial. They would have to be separate trials and the district attorney said, okay, then we won’t use those statements, which is of great importance for you because it makes it more difficult for the prosecutor. But--so that was about as close to a motion to severance as you can get.
“But I am satisfied that your attorney is working very hard on your own be--on your behalf. And I hope that this does not cause you not trust him and that you will still work with him because he’s going to need you to help him because you are his biggest resource to help him, discuss things with him. So I hope that you can continue to communicate with your attorney in the weeks ahead before trial.
“But I don’t think there’s a legal basis to--to grant your motion to relieve Mr. Shaver. He’s doing an excellent job for you. And I say that with 100 percent conviction and sincerity. So I mean, I’m--the Court is required to make sure that everyone gets adequate representation. You are getting more than adequate presentation. You are getting excellent representation in this court.
“So the motion is denied . . . .”
On appeal, defendant contends that the trial court failed to engage in the necessary inquiries before ruling on his Marsden motion. We agree.
Initially, we emphasize that the ultimate ruling on the Marsden motion is not before us. Instead, defendant’s claim centers on a preliminary matter, namely, whether the court engaged in the appropriate discussion with defendant before ruling on his motion.
Defendant’s Marsden claim raised two allegations: counsel failed to keep in contact with defendant and counsel failed to investigate an unspecified matter. Defendant does not raise any concerns about the court’s inquiries into the first allegation, thereby implicitly acknowledging the adequacy of discussion about counsel’s visits with defendant. Instead, he contends that the court virtually ignored his primary complaint, the alleged failure to investigate. The record bears out defendant’s claim.
During the course of the Marsden hearing, the trial judge emphasized its favorable impression of defense counsel. The court noted that it had worked with Attorney Shaver in the past and described him to be “very well respected, ” “hard working, ” and “capable.” He stressed that counsel had successfully presented several motions on behalf of defendant, and he cautioned that another attorney would be unlikely “to work nearly as well as Mr. Shaver has on this case.”
But Attorney Shaver’s conduct in the courtroom was not at issue. Defendant clearly stated that he was dissatisfied with his attorney because he had not gotten any response after asking him “to follow up on certain parts of [the] investigation.” The court did not ask defendant about the specifics of his claim, even when Attorney Shaver stated, “I guess I’m just not aware of what he’s talking about.” Instead, both the court and defendant’s attorney focused on all that counsel had done for defendant.
“A trial judge is unable to intelligently deal with a defendant’s request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom.” (Marsden, supra, 2 Cal.3d at p. 123.) “[A] court may not deny substitution of an attorney based solely on its own courtroom observations of the attorney’s previous demonstrations of courtroom skill without permitting the defendant to relate alleged instances of incompetence.” (People v. Barnett, supra, 17 Cal.4th at p. 1091.) On the other hand, if dissatisfaction stems from matters occurring within the courtroom, the trial court can properly comment on the quality of an attorney’s performance. (People v. Hines (1997) 15 Cal.4th 997, 1026.)
Here, defendant’s claim related to an alleged failure to investigate; it had nothing to do with matters that occurred in the courtroom. The court’s opinions of counsel’s courtroom skills were irrelevant to the issues raised by defendant. A trial court must permit a defendant to “enumerate specific instances of inadequate representation, in order to permit a proper exercise of discretion [citation], as well as to afford appellate review. [Citation.]” (People v. Clark (1992) 3 Cal.4th 41, 104.) “A trial court errs under Marsden by not affording a criminal defendant the opportunity to state all his reasons for dissatisfaction with his appointed attorney.” (People v. Vera (2004) 122 Cal.App.4th 970, 980.)
“A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention ‘is lacking in all the attributes of a judicial determination.’ [Citation.]” (Marsden, supra, 2 Cal.3d at p. 124; accord People v. Earp (1999) 20 Cal.4th 826, 876.)
Here, defendant voiced specific concerns about an alleged failure to investigate. Rather than responding to that concern, the trial court and defense counsel turned the conversation into an assessment of counsel’s abilities on unrelated motions. Such a discussion does not comport with Marsden requirements.
In People v. Miranda (1987) 44 Cal.3d 57, 77, overruled on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, footnote 4, a defendant asserted he had a conflict with his attorney because his attorney “‘don’t know how to do nothing.’” (Miranda, supra, at p. 76.) In response to a comment from the court, defendant added that he wanted an attorney who knew how to handle his type of case. (Ibid.) The court assured him that appointed counsel had the requisite skill, and denied his Marsden motion. (Ibid.) The court later granted defendant’s request for the appointment of second counsel. (Id. at p. 77.) Under these circumstances, the Supreme Court rejected defendant’s claim that the court had not adequately inquired into the factual basis for his request (id. at p. 76), and concluded that there was “nothing to indicate further inquiry would have uncovered specific examples of inadequate representation.” (Id. at p. 77.)
However, the court also noted that “it would have been helpful had the court probed further by asking defendant to be more specific or by inquiring into general areas of dissatisfaction. [Citation.] The failure to ask follow-up questions may make it more difficult for a trial court to thoughtfully exercise its discretion in a manner required by Marsden . . . . Additional questioning may assist the court in assessing the merit or lack thereof of a defendant’s motion.” (People v. Miranda, supra, 44 Cal.3d at p. 77.)
A court’s duty under Marsden is not met simply by providing an opportunity for a defendant to voice dissatisfaction if further inquiry and clarification are needed. “[T]he judge’s obligation to listen to an indigent defendant’s reasons for claiming inadequate representation by court-appointed counsel is not a pro forma function.” (People v. Munoz (1974) 41 Cal.App.3d 62, 66.) A court must not only “listen to a defendant’s volunteered reasons for believing he has been denied effective representation, but [must also] make an active inquiry into those reasons.” (People v. Stewart (1985) 171 Cal.App.3d 388, 398, disapproved on other grounds in People v. Smith (1993) 6 Cal.4th 684, 696.) A court should inquire into the particulars of a defendant’s claim. (People v. Cruz (1978) 83 Cal.App.3d 308, 317.) “‘A trial judge is unable to intelligently deal with a defendant’s request for . . . substitution of attorneys unless he is cognizant of the grounds which prompted the request.’ [Citation.] A denial of [a Marsden motion] without careful inquiry into the defendant’s reasons for claiming incompetence ‘“is lacking in all the attributes of a judicial determination.” [Citations.]’ [Citation.]” (People v. Stewart, supra, 171 Cal.App.3d at p. 398; see People v. Munoz, supra, 41 Cal.App.3d at p. 66.)
Thus, in People v. Lewis (1978) 20 Cal.3d 496, the defendant stated he was dissatisfied with his attorney because the attorney was not handling the case in a manner defendant thought appropriate. (Id. at pp. 497-498.) Rather than asking defendant to explain his position, the trial court cut defendant off, expressed its opinion that defense counsel was “extremely competent, ” and denied defendant’s Marsden motion. (Id. at p. 498.) The Supreme Court reversed, concluding “[b]ecause the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge’s denial of the motion without giving defendant an opportunity to do so denied him a fair trial.” (Id. at p. 499.)
The absence of any exchange about the specific nature of defendant’s claim stands in stark contrast to the inquiries undertaken in other cases. For example, in People v. Hart (1999) 20 Cal.4th 546, three Marsden hearings took place. In each, defendant gave specific examples of alleged deficiencies in representation, and the court invited responses from counsel on each. (Id. at pp. 601-604.) The record clearly indicated that “the trial court provided defendant with repeated opportunities to voice his concerns” (id. at p. 604), thereby refuting any claim that the court failed to conduct a proper Marsden inquiry. (Ibid.)
Similarly, in People v. Silva (2001) 25 Cal.4th 345, 365-366, the trial court read a document submitted by defendant that outlined the reasons for his Marsden motion, and the court asked defendant three times to state the grounds for his request to replace his attorney, and did not interrupt defendant’s explanation. The Supreme Court found the court’s actions satisfied the requisite duty of inquiry. (Id. at p. 367.)
In People v. Hines, supra, 15 Cal.4th 997, the defendant made three Marsden motions. In the first, when defendant asserted that his attorney was “not doing his job, ” the trial court asked defendant for specifics and then asked counsel to comment. (Hines, supra, at p. 1022.) In the second hearing, the trial court also questioned defendant closely about the basis for his complaints. (Id. at p. 1022-1023.) In a third hearing, defendant asserted that confusion had erupted between him and his attorneys, and the court again asked defendant to elaborate. When defendant had difficulty doing so, the court suggested that defendant take some time to think about specific reasons for his dissatisfaction with counsel and then bring them to the court’s attention. (Id. at p. 1023.)
The Supreme Court concluded: “On each occasion, the court repeatedly asked defendant to clarify the reasons for his dissatisfaction with counsel, and thereafter questioned defendant’s lead attorney at length to determine whether defendant’s allegations warranted counsel’s replacement. Although the third hearing was not as thorough as the first two, the court again made great efforts to have defendant explain the nature of the difficulties defendant was having with counsel. When defendant was unable to do so, the court gave defendant as much time as he needed to formulate his reasons for wanting different counsel. In short, at each of the three Marsden hearings the trial court fully complied with its duty to ascertain the nature of the problems defendant claimed he was having with his appointed counsel.” (People v. Hines, supra, 15 Cal.4th at p. 1024.)
The same cannot be said here. While the court explored one of defendant’s complaints (the alleged lack of contact between defendant and his lawyer), it ignored defendant’s claim that counsel had not responded to his request “to follow up on certain parts of [the] investigation.” The lack of further inquiry, particularly in light of counsel’s comment that he was “not aware of what [defendant was] talking about, ” made it impossible for the court to determine the exact nature of defendant’s claim or exercise its discretion accordingly. This was error under Marsden. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1666.)
The lack of adequate inquiry creates a silent record, making appellate review impossible. (People v. Leonard (2000) 78 Cal.App.4th 776, 787.) Therefore, defendant asserts, outright reversal is required. We disagree.
Originally, Marsden error was typically treated as prejudicial per se for precisely the reasons defendant suggests: the nature of the error precludes meaningful review. (See People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400.) However, courts subsequently devised an alternative remedy. “[W]hen the trial is free of prejudicial error and the appeal prevails on a challenge which establishes only the existence of an unresolved question which may or may not vitiate the judgment, ” the appropriate disposition is to reverse the judgment, remand to the trial court for a Marsden hearing, and then to reinstate the judgment if the Marsden motion is denied. (People v. Minor (1980) 104 Cal.App.3d 194, 199; see also Olivencia, supra, at pp. 1400-1401.) This remedy was cited with approval by the Supreme Court in People v. Hall (1983) 35 Cal.3d 161, 170.
Defendant cites People v. Ortiz (1990) 51 Cal.3d 975 for the proposition that Marsden error remains reversible per se. Ortiz is inapplicable. Defendant fails to note a critical distinction between the Ortiz situation, involving retained counsel, and his own case, involving appointed counsel.
Ortiz involved an indigent defendant, represented by retained counsel, who wanted to replace his attorney with appointed counsel. The Supreme Court emphasized that, unlike the situation in a Marsden hearing involving replacement of appointed counsel, a defendant is entitled to replace retained counsel for any reason or no reason. (People v. Ortiz, supra, 51 Cal.3d at pp. 983-984.) The court held that these statutory and constitutional rights applied regardless of a defendant’s financial condition. (Id. at pp. 984-987.) The court concluded, “Although nothing we do here affects the rule that indigent defendants do not have the right to choose a particular attorney to be appointed at public expense, there is no interest compelling us to treat an indigent defendant any differently from a nonindigent defendant when he moves to discharge his retained counsel. In light of the importance of the right to counsel of choice and the sensitive nature of the relationship between a criminal defendant and his lawyer, we must not allow a defendant’s indigence to prevent him from discharging in a timely manner the retained counsel he no longer wishes to represent him.” (Id. at p. 987.) The court held this error to be reversible per se. (Id. at p. 988; see also People v. Hernandez (2006) 139 Cal.App.4th 101, 109.)
The case before us does not involve retained counsel; rather, defendant’s challenge was to his appointed attorney. Ortiz has no application in these circumstances. (See generally People v. Lara (2001) 86 Cal.App.4th 139, 149-155.) In fact, as noted, the Supreme Court expressly recognized that a remand for reconsideration of a Marsden motion “is preferable” to an outright reversal of the judgment. (People v. Hall, supra, 35 Cal.3d at p. 170.) We will therefore remand for a hearing in which the trial court can make the appropriate inquiries to determine whether good cause existed for the appointment of new counsel when defendant made his Marsden motion.
II
Batson-Wheeler Motion
After the prosecutor excused T.M., the sole African-American prospective juror, defendant objected, asserting this peremptory challenge was improper under Wheeler. (See People v. Yeoman (2003) 31 Cal.4th 93, 117-118 [objection under Wheeler preserves federal claims under Batson].) The trial court found that defendant had met his burden of establishing a prima facie case of discrimination under Wheeler, but it accepted the prosecutor’s explanation for the challenge and denied defendant’s motion. On appeal, defendant contends that the court’s ruling was erroneous. We disagree.
“The use of peremptory challenges to remove prospective jurors because of their race or gender violates both the federal and the California Constitutions. [Citations.] The United States Supreme Court has set out a three-step process to be followed when a party claims that an opponent has improperly discriminated in the exercise of peremptory challenges. First, the complaining party must make out a prima facie case of invidious discrimination. Second, the party exercising the challenge must state nondiscriminatory reasons for the challenge. Third, the trial court must decide whether the complaining party has proved purposeful discrimination. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 104.)
“When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]” (People v. Jurado, supra, 38 Cal.4th at pp. 104-105.)
In her juror questionnaire, T.M. stated she was 33 years old and had an A.A. degree. She worked in hotel special services for Marriott Worldwide Reservations, performing a number of different duties. She responded “N/A” to a question asking whether she rented or owned her residence, and “N/A” to a question asking about the employment history of other adults with whom she resided.
T.M. had no opinions about criminal defense attorneys or prosecutors. She had no prior jury experience, and no law enforcement contacts. However, her brother had been convicted of a drug possession charge and had been placed on probation. T.M. was “unsure” of the details of this offense, but believed her brother was treated fairly. She did not think her brother’s situation would have affected her judgment in this case.
T.M. agreed with the legal principles set forth in the questionnaire, and indicated she would apply the same standards for assessing witness credibility to peace officers and other witnesses. One question asked, “Do you believe that it is possible that a defendant charged with a crime might not tell the truth?” but T.M. left this question blank. However, in response to another question, she indicated that she believed that it was possible for any witness to tell the truth and yet lie under oath. She explained: “There are a number of reasons why I feel this way. I feel that there are some people who do not take the oath in a serious manner.” She thought she was a good judge of credibility, noting that she was well rounded, well traveled, open minded, and experienced in dealing with many types of people.
In response to questioning by one defense attorney, T.M. said she “absolutely” could be fair, reiterating that she was well rounded and weighed everything out “as far as making any decisions.” She said she would not give more weight to a police officer’s testimony, and agreed that officers could make mistakes just like anyone else.
After asking general questions of the entire venire, the prosecutor followed up by asking T.M. about several of her responses. She had received three tickets for speeding and said she deserved them all. T.M. had testified in deposition and trial in a case she had brought against an employer after a “run-in.” She said she had been confident about her case, but had been nervous reliving the experience and testifying in front of people she did not know. T.M. affirmed that she could return a guilty verdict if the prosecutor met his burden of proof.
During the second round of peremptory challenges, the prosecutor exercised a peremptory challenge against T.M., and defense counsel objected, citing Wheeler.
At the ensuing hearing, the court noted that T.M. was the only black juror in the jury box, and found defendant had established a prima facie case of discrimination. The court asked the prosecutor to explain his challenge.
The prosecutor responded that he did not know T.M.’s ethnicity when he reviewed her questionnaire but some of her responses had given him concern. He noted that T.M. had responded “N/A” when asked whether she owned or rented her residence, which indicated to the prosecutor that T.M. “probably still lives with her parents and she is 31 [sic] years old. So I had concerns about taking grown-up responsibilities with that answer.”
The prosecutor pointed out that T.M.’s brother had been convicted for drug possession, and this case involved drug use. He said he was concerned “about her ability to be fair based on her family history.” He added that “after having that concern, I got to the packet on witness credibility where she didn’t answer, if you believe it’s possible the defendant charged with a crime might not tell the truth. And I didn’t see any other questions that she had missed.”
The prosecutor then added, “[L]astly, when we were asking her questions, she said that she had sued her employer and taken her case to trial. My feelings, this would cause her to have a natural empathy with people who want to take their cases all the way through trial. [¶] And probably more of anything, based on--based on that concern about her taking her own case in suing an employer and going all the way through trial, I just didn’t feel that she would be the best juror for my case.”
Defense counsel responded to these explanations, but the trial court concluded that the prosecutor acted properly in excusing T.M. The court stated, “A peremptory challenge does not have to rise to the level of a challenge for cause. The question in a Wheeler motion is whether or not the challenge was made for racial reasons. . . . [I]f a juror has a relative who’s been arrested and convicted for other matters, that is a legitimate reason for the prosecutor to excuse the juror. I accept [the prosecutor’s] explanation and I think that it is a race neutral reason.”
Defendant asserts this ruling was erroneous. We disagree.
“[A] party may decide to excuse a prospective juror for a variety of reasons, finding no single characteristic dispositive.” (People v. Gray (2005) 37 Cal.4th 168, 189.) A peremptory challenge based on a juror’s demeanor or other intangible factors may nonetheless be legitimate. (See People v. Ward (2005) 36 Cal.4th 186, 200.)
The prosecutor offered valid, nondiscriminatory reasons for exercising a peremptory challenge against T.M., most notably (1) T.M.’s litigation against her employer and perceived “empathy with people who want to take their cases all the way through trial, ” and (2) her brother’s conviction for drug possession. We defer to the trial court’s ability to distinguish bona fide reasons from sham excuses. (People v. Ward, supra, 36 Cal.4th at p. 200.)
Defendant contends that other jurors had relatives with criminal histories, failed to answer all questions on the questionnaire, or had issues with their employer. Even if we assume that a comparative juror analysis is appropriate, defendant does not identify anyone who expressed responses similar to T.M.’s on all of these topics. (See People v. Jurado, supra, 38 Cal.4th at p. 105.) While some of the seated jurors shared one or another of the characteristics exhibited by T.M., none shared the same constellation of traits. None had both a relative with a drug-related conviction and had taken a complaint against his or her employer to trial.
Defendant suggests that the prosecutor should have asked questions of T.M. to clear up any concerns about her living situation. While we agree such questioning might have been helpful, defendant cites no authority to support his belief that the prosecutor was required to engage in such a dialogue before exercising a legitimate peremptory challenge.
In short, defendant’s claims under Batson-Wheeler are not persuasive. Substantial evidence supports the trial court’s determination that the prosecutor properly exercised his peremptory challenge to excuse T.M.
III
Severance
Before trial began, defendant sought to sever his trial from that of codefendant Magana on the ground that mutually antagonistic defenses would be offered. The trial court denied this motion, as well as defendant’s renewed motion during trial. On appeal, defendant contends that the trial court’s rulings constituted an abuse of discretion. We disagree.
Section 1098 expresses a legislative preference for joint trials and provides in relevant part that “‘[w]hen two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’” “When defendants are charged with having committed ‘common crimes involving common events and victims, ’ as here, the court is presented with a ‘“classic case”’ for a joint trial.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.)
“A court’s denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling.” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.) In determining whether severance is appropriate, a court examines several nonexclusive factors, including the presence of an incriminating confession, prejudicial association with a codefendant, confusion stemming from evidence relating to multiple counts, conflicting defenses, or the possibility that a codefendant might, at a separate trial, give exonerating testimony. (Id. at p. 40.)
Here, defendant asserts that he and defendant Magana offered antagonistic defenses, requiring the severance of their trials. “Although there was some evidence before the trial court that defendants would present different and possibly conflicting defenses, a joint trial under such conditions is not necessarily unfair. [Citation.] ‘Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants’ trials, none has found an abuse of discretion or reversed a conviction on this basis.’ [Citation.] If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials ‘would appear to be mandatory in almost every case.’ [Citation.]” (People v. Hardy (1992) 2 Cal.4th 86, 168; accord People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
“‘[A]lthough it appears no California case has discussed at length what constitutes an “antagonistic defense, ” the federal courts have almost uniformly construed that doctrine very narrowly. Thus, “[a]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.” [Citation.] “Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.”’ [Citation.] When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance. [Citation.]” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
The fact that defendant and Magana offered conflicting defenses presented the “classic case” typically faced by two defendants charged with the same crimes. It did not compel severance. This is not a situation in which the conflict alone demonstrated guilt. Witness testimony and physical evidence also linked defendant to the crimes. The trial court did not abuse its discretion in denying defendant’s motions for severance.
A conviction may nonetheless be reversed if consolidation caused a “gross unfairness, ” depriving a defendant of a fair trial or due process of law. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 998; People v. Greenberger (1997) 58 Cal.App.4th 298, 343.) In making such a determination, the court looks to the evidence actually introduced at trial. (Greenberger, supra, at p. 343.)
No gross unfairness occurred here. Defendant Magana testified at trial and was subject to cross-examination. (See People v. Boyde (1988) 46 Cal.3d 212, 234.) This was not a case in which the prosecutor charged both defendants and left it to them to convince the jury which was responsible. Instead, the prosecutor theorized that both defendants were responsible for the charged offenses. (See People v. Cummings (1993) 4 Cal.4th 1233, 1287.) Under these circumstances, joint trial was appropriate and did not violate defendant’s constitutional rights.
IV
Admissibility of Uncharged Acts
At trial, defendant began to cross-examine Magana about a 2001 incident in which someone fired a gun out of Magana’s car, but, after an unreported conversation at the bench, the trial court cut off this line of questioning.
In his motion for new trial, defendant explained that in the 2001 incident, Magana had claimed that a passenger was the shooter, but witnesses had identified Magana, the driver, as the person who fired the shots. Defendant asserted this evidence should have been admitted to impeach Magana’s credibility.
The court rejected this argument, explaining: “[I]f you are going to ask about misdemeanor conduct where there was no conviction, then you are opening up a trial within a trial. And I think it would involve undue consumption of time to put on this evidence. [¶] You are going to put on evidence that the defendant . . . committed misdemeanor conduct and then the other side is going to put on evidence to rebut that and we are going to be spending time trying the issues in this three-year-old misdemeanor case that never went to court. [¶] And I think that would involve an undue consumption of time. And also I think the relevance would be minimal if not nil in view of the fact that there was never a conviction. [¶] So, because of that, I think that it’s a strong [Evidence Code section] 352 issue that it takes more time than--would involve more time than the probative value would be worth. That, therefore, it should be excluded and that’s why I didn’t allow it.”
On appeal, defendant contends that the trial court’s ruling was erroneous. We conclude otherwise: the court’s ruling was well within its discretion.
“A trial court may exclude evidence under Evidence Code section 352 if its probative value is substantially outweighed by the probability that admission will unduly consume time, create a substantial danger of undue prejudice, confuse the issues, or mislead the jury. . . . The court’s exercise of discretion will not be reversed on appeal absent a clear showing of abuse.” (People v. Mincey (1992) 2 Cal.4th 408, 439.)
Contrary to defendant’s claim, the application of Evidence Code section 352 did not impermissibly infringe on the accused’s right to present a defense. (People v. Morse (1992) 2 Cal.App.4th 620, 640-641.) A trial court may invoke Evidence Code section 352 to exclude marginally relevant evidence that would entail the undue consumption of time without contravening a defendant’s right to confrontation and cross-examination. (People v. Brown (2003) 31 Cal.4th 518, 545.) “Although a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his favor, this does not mean the court must allow an unlimited inquiry into collateral matters; the proffered evidence must have more than slight relevancy.” (People v. Marshall (1996) 13 Cal.4th 799, 836.) “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination . . . . [T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish.” (People v. Harris (1989) 47 Cal.3d 1047, 1091.)
Here, defendant had listed several potential witnesses to the 2001 incident. The trial court reasonably determined that a detour into these facts would involve an undue consumption of time without adding significant probative value. (See People v. Brown, supra, 31 Cal.4th at pp. 545-546.) Under these circumstances, the trial court acted within its discretion in excluding the proffered evidence under Evidence Code section 352. (See People v. Morse, supra, 2 Cal.App.4th at p. 642.)
V
Admissibility of Photographs
Defendant contends that the trial court erred in admitting crime scene and autopsy photographs. He asserts that these photos were unduly graphic and cumulative, and therefore should have been excluded under Evidence Code section 352. We disagree.
“We review a trial court’s ruling under [Evidence Code] section 352 for abuse of discretion. [Citation.] On appeal, a trial court’s exercise of discretion to admit evidence under that evidentiary statute is reversed only if ‘the probative value of the photographs clearly is outweighed by their prejudicial effect.’ [Citation.] Prejudicial in this context is ‘evidence that uniquely tends to evoke an emotional bias against a party as an individual’ and has only slight probative value. [Citation.]” (People v. Carey (2007) 41 Cal.4th 109, 128.)
After carefully considering defendant’s objections to the proffered photographs, the trial court excluded some photographs under Evidence Code section 352 and admitted others. These rulings were well within the trial court’s discretion.
The photographs of the crime scene show the murdered victims, and each shows a somewhat different angle and perspective of the scene. Some show the victims’ bodies as they were initially found, others show the victims bodies turned over. The court concluded that these photographs were not “unduly grotesque” and that their probative value outweighed any potential for prejudice. There was no abuse of discretion in making that determination.
These photographs are not cumulative and inadmissible even though witnesses described the crime scene and the prosecutor played a videotape of the scene for the jury. “‘In a prosecution for murder, photographs of the murder victim and the crime scene are always relevant to prove how the charged crime occurred, and the prosecution is ‘not obliged to prove these details solely from the testimony of live witnesses.’” (People v. Pollock (2004) 32 Cal.4th 1153, 1170.) “[T]he jury was entitled to see how the physical details of the scene and bod[ies] supported the prosecution theory . . . .” (People v. Turner (1990) 50 Cal.3d 668, 706; accord, People v. Pride (1992) 3 Cal.4th 195, 243.)
Here, the trial court thoughtfully reviewed the crime scene photographs, admitted some and excluded others. There was no abuse of discretion.
In a similarly careful manner, the court reviewed each of the challenged autopsy photographs and admitted some, concluding that they were probative to establish the prosecutor’s theory of the case and were not unduly prejudicial. “Although autopsy photographs of a murder victim are always unpleasant, the photographs in this case are not overly graphic and are relevant to the manner in which [the victims were] killed.” (People v. Carey, supra, 41 Cal.4th at p. 128.) The court properly engaged in the weighing process outlined by Evidence Code section 352, and acted well within its discretion in admitting the challenged photographs
VI
Brady Error
Soon after the jury began its deliberations, the prosecution disclosed the existence of a letter written by defendant Magana from jail that had been intercepted sometime earlier by the sheriff’s department. Defendant asserted the failure to disclose this evidence during trial constituted Brady error. The trial court disagreed, and defendant challenges that conclusion on appeal. There was no error.
As the California Supreme Court recently summarized, Brady held that “‘the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ [Citation.] The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused [citation], that the duty encompasses impeachment evidence as well as exculpatory evidence [citation], and that the duty extends even to evidence known only to police investigators and not to the prosecutor [citation]. Such evidence is material ‘“if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”’ [Citation.] In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citations.]
“‘[T]he term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence--that is, to any suppression of so-called “Brady material”--although, strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudiced must have ensued.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.”’ [Citation.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043.)
“‘In general, impeachment evidence has been found to be material [for Brady purposes] where the witness at issue “supplied the only evidence linking the defendant(s) to the crime.” [Citations.] In contrast, a new trial is generally not required when the testimony of the witness is “corroborated by other testimony.” [Citations.]’” (People v. Salazar, supra, 35 Cal.4th at p. 1050.)
Defendant’s Brady claim centers on a letter that sheriff’s deputies intercepted at the jail. In this letter, Magana wrote to a friend that he thought he “might get washed. (Life in the pen), ” but added “the weird part of that thought is I don’t care.” Later in the letter, he wrote: “Oh do me a favor stay away from ALL black people!!! There [sic] all the same. Big mouth, liar, rats. So be careful! Stay with whites! Your own people! Even your own race will do you dirty don’t get me wrong Just be careful on who you trust!”
Defendant contended that this evidence was favorable to him because it would have impeached Magana. Specifically, he asserted the first quoted sentence constituted an admission or confession, and the second demonstrated Magana’s antipathy toward African-Americans and bias against defendant, who is black.
The trial court found the comments about a possible prison sentence to be ambiguous and noted that Magana’s relationship with defendant had been explored at trial. The court therefore concluded there was no reasonable likelihood that the letter would have changed the jury’s decision.
Defendant asserts these conclusions were erroneous. We disagree.
Even if we assume that two of the three prongs of the Brady test were met, that is that the letter was potentially impeaching evidence and that it had been suppressed by the State (see In re Brown (1998) 17 Cal.4th 873, 879-880), defendant’s claim founders on the third Brady prong: the letter was not material and therefore not prejudicial.
As the trial court noted, a fear of being found guilty does not constitute an admission or confession; it simply indicated Magana’s belief that “he could get convicted[, ] guilty or innocent. And a lot of people feel like that.” The bravado exhibited in Magana’s statement that he did not care if he was convicted does not transform his remark into a confession or admission.
Moreover, as the court also noted, other evidence, relating to the same issue, was in fact admitted at trial: Magana had told a deputy that he had flushed his ring down the jail toilet because “where he was going, he did not need it.” Magana was cross-examined about another letter in which he had also expressed his belief that he was going to go prison; he explained that he had “no faith in the system” and thought he was going to serve time despite his innocence.
The trial court properly concluded that, given these circumstances, the letter at issue would have had little, if any, effect on the jury.
The court also properly concluded that Magana’s warning to his friend to “stay away from ALL black people” would have been unlikely to have affected the jury’s verdict. Magana had testified that defendant was the only black person he knew, and his relationship with defendant was explored at length and described by many witnesses.
In sum, defendant has failed to establish the materiality of this evidence under Brady. There was no error.
VII
Ineffective Assistance of Counsel
Raising a claim of ineffective assistance of counsel, defendant contends his attorney should have recalled Scott F. to testify about a statement that codefendant Magana allegedly made to him. In this statement, described at the preliminary hearing, Magana said he shot Kevin Dehnke but only grazed him. Kevin then attacked him, and Magana called for help. Defendant responded by shooting Kevin in the head. On appeal, defendant asserts this evidence contradicted Magana’s trial testimony that he was an innocent bystander and therefore would have impeached his credibility. It also would have provided a factual basis for an instruction on imperfect self-defense. Contrary to defendant’s contention, the failure to recall Scott to testify does not constitute ineffective assistance of counsel.
“To establish constitutionally inadequate representation, a defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058.)
At the hearing for new trial, defense counsel noted that while he was able to cross-examine Magana about his statements to Scott, the jury never “heard about it from [Scott’s] lips.” Counsel argued that the “cross-examination lacked the salience that it would have had had [Scott] been able to tell the jury what was told to him in the first place.” He added, “I guess a tactical decision was made not to put [Scott] back on and I think cross-examining Magana, that was . . . not particularly effective.” The court noted that Scott could have been ordered back to testify had defendant made such a request.
Trial tactics are ordinarily left to the discretion of trial counsel. (People v. Wright (1990) 52 Cal.3d 367, 412.) We evaluate these decisions from counsel’s perspective at the time they were made, and presume that they fall within the “wide range of reasonable professional assistance.” (People v. Dennis (1998) 17 Cal.4th 468, 541.) A conviction will be reversed only if the record affirmatively discloses that counsel had no rational tactical purpose for his act or omission; in all other cases, any relief must come through habeas corpus proceedings. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Zapien (1993) 4 Cal.4th 929, 980.)
Here, counsel suggested he had tactical reasons for not recalling Scott to testify. Those reasons are not difficult to imagine. Defendant painted Scott as an unreliable and incredible witness, and he even suggested that Scott might have been involved in the murders. Calling Scott to testify on his behalf might have undermined that claim. Under these circumstances, the decision not to recall Scott was a matter of trial tactics, not evidence of ineffective assistance of counsel.
VIII
Cumulative Error
Defendant contends that the cumulative effect of the court’s errors compels reversal. Our conclusion that only Marsden error occurred necessarily disposes of defendant’s claim: there is no cumulative effect to assess.
IX
Parole Revocation Fine
Defendant’s sentence included two consecutive life terms without the possibility of parole, but the trial court nonetheless imposed a parole revocation fine of $200 pursuant to section 1202.45. Defendant contends, and the People concede, that a parole revocation fine cannot be imposed when there is no parole eligibility. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186.) We agree that this fine must be stricken.
Disposition
The judgment is reversed with directions to the trial court to conduct a hearing at which defendant shall have a full opportunity to explain the reasons why he requested the appointment of new counsel. If the court determines that defendant has shown good cause for appointment of new counsel under Marsden, at the time the motion was made, the court shall appoint new counsel and set the case for retrial. If, however, the court determines that good cause has not been shown, it shall (1) reinstate the judgment against defendant, except that the parole revocation fine must be stricken (People v. Minor, supra, 104 Cal.App.3d at p. 200), (2) amend the abstract of judgment to reflect this modification of the judgment, and (3) forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J., ROBIE, J.