Opinion
NOT TO BE PUBLISHED
(Super. Ct. No. 06F00417)
SCOTLAND, P.J.
A detective working undercover in the Alkali Flats neighborhood of Sacramento purchased a rock of cocaine base from defendant Eric Lloyden for $20. A jury convicted defendant of selling cocaine base. Finding defendant had served a prior prison term, the trial court sentenced him to an aggregate term of five years in prison.
On appeal, defendant contends (1) the court should have granted his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 (hereafter Marsden)), (2) use of a security chair denied him the right to a fair trial, (3) the prosecutor committed prejudicial misconduct, and (4) cumulative error warrants reversal. We shall affirm the judgment.
DISCUSSION
I
Appellant contends his Marsden motion was improperly denied. We disagree.
A defendant is entitled to have his or her appointed counsel replaced if the record clearly shows that counsel is not providing adequate representation or that the defendant and counsel have become so embroiled in conflict that ineffective representation will likely result. (People v. Barnett (1998) 17 Cal.4th 1044, 1085; Marsden, supra, 2 Cal.3d at p. 123.) We review for abuse of discretion the trial court’s denial of a Marsden motion, and will find such an abuse only where the defendant has shown that the failure to replace appointed counsel would substantially impair defendant’s right to assistance of counsel. (People v. Barnett, supra, 17 Cal.4th at p. 1085.)
Here, following the preliminary examination, defendant made a Marsden motion requesting substitution of his assigned public defender, Juan Contreras. Defendant told the court that Contreras was not representing him adequately because he was not taking him seriously and, in defendant’s words, Contreras “is not granting me the opportunity to exercise my rights as a defendant myself, even though he is a lawyer in this situation.” Defendant also claimed that Contreras was prejudiced against him “due to my belief and my faith in my religion” and “he also took me as, I don’t know, a paranoid schizophrenic, and I think he acted like he wanted to send me to a psych for me speaking about . . . what I believe, and how it’s been professed to me by my religion.”
In response, Contreras stated: “Mr. Lloyden brought to my attention that he believes that to a certain extent that the government, police department, the FBI, CIA, everybody is out to get him because of his religious convictions, and he wanted me to turn it into, why are they particularly coming after me because of my religious convictions?” Contreras informed the court that he did not say anything negative about defendant’s religion. Instead, he told defendant they “are addressing the facts of the case.” When he asked if defendant had any witnesses to the incident or an alibi, defendant had nothing for counsel other than asserting the case was “like a big conspiracy against him.” Defendant also wanted Contreras to inquire why he was arrested while no one else was arrested, but Contreras told him this was not a proper line of inquiry for a preliminary examination, which upset defendant.
Defendant replied that it was the court’s and not counsel’s function to “object or overrule anything that he feels that is not able to be mentioned in a preliminary hearing or a court.” He claimed that Contreras felt no obligation to “defend me in this matter like this” and therefore the relationship between them was not going to work.
The court denied the Marsden motion, finding there was no breakdown in the attorney-client relationship and no inadequate representation by counsel.
Defendant was represented by a different public defender at trial.
Because it found defendant’s allegations about Contreras were not credible, the court properly concluded that defendant failed to carry his burden of showing that he was entitled to substitute counsel. (See People v. Young (2005) 34 Cal.4th 1149, 1181.)
According to defendant, his perception of Contreras as being prejudiced against him was a sufficient reason for the court to grant the Marsden motion. But that is not the law. “A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.” (People v. Crandell (1988) 46 Cal.3d 833, 860; original italics.) To require otherwise would give defendant an effective veto power over the selection of counsel.
Given that defendant’s Marsden motion was based on his groundless belief that counsel had disparaged his religion and his unjustified dissatisfaction with counsel’s failure to raise irrelevant points at the preliminary examination, the court correctly exercised its discretion in denying this motion.
II
We also reject defendant’s claim that he “was improperly shackled in front of the jury, violating his state and federal rights to due process and a fair trial . . . .”
In People v. Duran (1976) 16 Cal.3d 282 (hereafter Duran), our Supreme Court “reaffirm[ed] the rule that a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (Id. at pp. 290-291.) The restraints “should be as unobtrusive as possible” and only be imposed upon a proper showing of their necessity. (Id. at p. 291.) Upon a showing of their necessity, the court may impose the restraints most suitable to the circumstances at hand, provided the showing of need is made on the record. (Ibid.)
During the trial in this case, defendant was restrained in “a conventional security chair which has hidden restraint.” Defense counsel objected that the restraints would prevent defendant from standing to greet the jury and that the handcuffs would be visible to jurors when they entered the courtroom.
The court could not see the restraints but nonetheless suggested that defendant could wear a suit coat to cover the restraints if they otherwise might be seen by jurors. Defense counsel agreed this “perhaps may eliminate some of the visibility” but repeated her objection to the restraints.
When asked for the reasons the sheriff wanted to use the restraints, the bailiff stated that defendant had been subjected to “eight write-ups for behavior” and “three informational only write-ups” while in custody. As a result, defendant was in administrative segregation, “the highest level of security we have for an inmate.” The bailiff reported that defendant had demonstrated a pattern of misbehavior, having been written up for insubordination, verbal abuse towards staff, threats, and an assault on a staff member with a food tray. Although the sheriff’s department believed that defendant’s behavior in jail warranted shackling, his good behavior in court led the sheriff to recommend the less intrusive security chair. Defendant could still move his hands and legs while in the security chair.
Finding that the restraint was not “particularly obtrusive,” the court concluded that it was appropriate in light of defendant’s “disciplinary history” and the minimal visibility of the security chair. Over the prosecution’s objection, the court ordered both counsel to remain seated when the jury entered. After denying defendant’s motion, the court then called a recess so defendant could try on the suit coat. There is no mention in the record of whether defendant wore the coat during the trial.
The reasons for the shackling were adequate--defendant had an extensive record of disciplinary problems while in custody, including one assault on a guard. Defendant did not contest his disciplinary record or the trial court’s characterization of the restraint as not “particularly obtrusive.” In any event, the jury was instructed: “The fact that physical restraints have been placed on the defendant is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations.” (People v. Avila (2006) 38 Cal.4th 491, 574 [“We presume the jury followed the court’s instructions”].) There was no error.
III
Defendant makes several claims of prosecutorial misconduct during the closing argument.
“‘[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 463.) However, “[w]hen a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.]” (People v. Panah, supra, 35 Cal.4th at p. 462.)
The crucial issue is not the good faith of the prosecutor, but the potential injury to the defendant. (People v. Clair (1992) 2 Cal.4th 629, 661.) We review the prosecutor’s remarks to determine whether there is a reasonable likelihood that the jury misconstrued or misapplied them. (People v. Clair, supra, 2 Cal.4th at p. 663.)
Considered in light of this standard of review, defendant’s claims of error fail.
A
Over defendant’s objection during closing argument, the prosecution used visual aids summarizing the beyond-a-reasonable-doubt standard and the prosecution’s burden of proof as follows:
“Reasonable Doubt is:
“• NOT Beyond a shadow of a doubt
“• NOT Possible doubts
“• NOT Defendant’s denial
“• NOT Mere conflicts in evidence
“• NOT unanswered questions
“• NOT speculation
“• NOT missing pieces
“Burden of Proof
“Reasonable doubt is defined as follows:
“• Proof that leaves you with an abiding conviction that the charge is true.
“• The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.” (Original emphasis.)
Defendant argues the visual aids were “misleading” because although a possible doubt or a conflict in the evidence does not necessarily create reasonable doubt, either may nonetheless raise such a doubt. He also argues the aids were “incomplete” because they omitted the presumption of innocence. In his view, the aids effectively diluted the prosecution’s burden of proving defendant’s guilt beyond a reasonable doubt. We are not persuaded.
The assertion that a “mere” conflict in the evidence does not alone create reasonable doubt is correct. The jury was instructed that it must resolve any conflicts in the evidence. A conflict in the evidence does not by itself create reasonable doubt.
While the reference to possible doubt omitted the qualifier “mere” from the statutory definition of the beyond-a-reasonable-doubt standard (Pen. Code, § 1096), this did not rise to the level of prosecutorial misconduct. Besides, the jury was instructed with the definition of the beyond-a-reasonable-doubt standard. And it was instructed that if anything said by the attorneys during argument conflicted with the law as set forth in the instructions, the jurors were to follow the instructions. We presume they did so. (People v. Avila, supra, 38 Cal.4th at p. 574.) For the same reason, the omission of any reference to the presumption of innocence is not misconduct since the court correctly instructed the jury on this presumption. In light of the court’s instructions, it is not reasonably likely that the jury misconstrued the visual aids.
B
Defendant objects to two references by the prosecutor to the negative effects of cocaine on the community.
First, the prosecutor argued: “Now do drug dealers sell rock cocaine only a few blocks away from this courthouse every day on the streets in small amounts? Yes, they do. [¶] Are the neighbors and businesses in the Alkali Flats, in those neighborhoods, fed up with it and need help? Yes, they do. [¶] Are the police and the narcotics detectives doing everything they can to stop that drug dealing -- ” Defendant’s objection was overruled without comment.
Later, the prosecutor said: “Again, this is not the case of the century; but it is important and this is the reason why there is a law that you don’t sell cocaine because it affects those communities. It affects people.” Defendant did not object to this statement.
Defendant claims these statements were “nothing less than an improper attempt to seek vengeance on behalf of the community at appellant’s expense.” He is mistaken.
It “is permissible to comment on the serious and increasing menace of criminal conduct and the necessity of a strong sense of duty on the part of jurors. [Citation.] The prosecution may properly urge his points vigorously as long as he does not act unfairly.” (People v. Escarcega (1969) 273 Cal.App.2d 853, 862-863.) The prosecution’s references to the impact of drugs on the community were an appeal for the jury to take its duty seriously, rather than efforts to incite the jury against defendant. Thus, they were not misconduct.
C
At one point, the prosecutor, Iman Shad, referred to defense counsel Rita Olague as follows: “You just heard her closing. I counted three or four of the DA this, DA, Mr. Shad, Mr. Shad, Mr. Shad. And there is an old saying that when it comes to legal arguments in the legal profession, if the law is on your side, you argue the law. If the facts are on your side, argue the facts. If the law and facts aren’t on your side, you do two things: You keep saying reasonable doubt, reasonable doubt -- [¶] . . . [¶] [Objection overruled.] [¶] Or you say the DA, the DA, this DA, this DA, personalize it as though it is about me. [¶] Now realize this: If you start -- or when you start or you accept that this case is somehow about me, your attention is over here (indicating) and it is far away from this defendant’s criminal conduct. That’s the purpose for that.”
Defendant contends this was an improper attack on his defense counsel’s integrity that “eviscerated the concept of proof beyond a reasonable doubt.” We conclude, however, that it was an allowable response to defense counsel’s argument to the jury.
Defense counsel made several references to the prosecutor in her closing argument. Her first was arguing the “DA wants you to believe that the only issue here is whether Mr. Lloyden sold cocaine, but there is more going on here than that.” Counsel also argued: “Mr. Shad wants you to say -- wants you to believe that Mr. Lloyden knew what the substance was. Come on, ladies and gentlemen. He is in Alkali Flats, he knows what’s up.” In concluding her summation, counsel stated: “I want you to remember the law, the instructions that you are given and remember, more importantly, the DA has the job to do and that you must hold him to that standard.”
It is true that a prosecutor “venture[s] onto dangerous ground” when commenting upon opposing counsel. (People v. Thompson (1988) 45 Cal.3d. 86, 113, fn. 20.) It is misconduct to suggest that defense counsel does not believe the client’s defense, is lying, has fabricated evidence, or is otherwise the villain in the case. (Id. at pp. 112-113.) Casting aspersions on defense counsel can direct attention to largely irrelevant matters rather than to the evidence and appropriate inferences upon which a conviction should rest. (Ibid.)
However, comments about opposing counsel are not necessarily misconduct. (People v. Thompson, supra, 45 Cal.3d at p. 113.) The question is whether they were directed at focusing the jury’s attention on the evidence and perceived weaknesses in the defense case, or tended to shift attention from the evidence to irrelevant matters. (Ibid.)
As we have noted, defense counsel made several references to the prosecutor in her closing argument. The prosecutor’s reply was not to disparage opposing counsel, but to argue her tactic was a sign of the weakness of defendant’s case. This was not misconduct.
Similarly, the references to the proof-beyond-a-reasonable-doubt standard were references to the purported weakness in defendant’s case. We may not infer lightly that the jury drew the most damaging, rather than the least damaging, meaning from the prosecutor’s statements. (People v. Frye (1998) 18 Cal.4th 894, 970.) There is no reasonable likelihood that the jury misconstrued those remarks to disregard the standard of proof beyond a reasonable doubt.
D
The prosecution argued, over defendant’s objection: “Now if there is any potential concern for whether or not this thing was cocaine base, this is an item of evidence. The defendant can take it, have it tested at another laboratory, bring an expert, put that expert on the stand and talk about -- [¶] . . . [¶] [objection, overruled] [¶] -- and talk about why any of these procedures were something to be concerned about or that some sort, some way, that the evidence was compromised in any way, shape or form or that it wasn’t, in fact, cocaine base.”
According to defendant, this statement improperly placed on defendant the burden of proving his innocence. Again, we conclude that the statement was an allowable response to defense counsel’s arguments to the jury.
In seeking to raise reasonable doubt about whether defendant had sold cocaine to the detective, defense counsel attacked the chain of custody and chemical testing of the substance. In light of this argument, the prosecutor was entitled to respond as he did. “A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)
IV
Lastly, defendant argues that cumulative error violated his right to due process of law. The contention fails because we have rejected his claims of error.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , J., CANTIL-SAKAUYE , J.