Opinion
C040092.
11-7-2003
THE PEOPLE, Plaintiff and Respondent, v. YIA N. THAO, Defendant and Appellant.
Defendant Yia N. Thao was convicted by a jury of possession of methamphetamine (Health & Saf. Code, § 11377), transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)), and two counts of felonious driving and taking a vehicle without consent of the owner (Veh. Code, § 11851, subd. (a)) while out on bail (Pen. Code § 12022.1). After two priors were found to be true, he was sentenced to nine years in state prison. Thao appeals, contending the trial court erred in failing to order a hearing into the competency of his court interpreter, in denying his Marsden motions, and in failing to grant him a jury trial on the issue of identity relative to the alleged prior convictions. He also raises ineffective assistance of counsel. We reject these claims and affirm the judgment.
FACTS AND PROCEEDINGS
On May 22, 2000, Thao was stopped by a Sacramento police officer as he drove a Toyota Camry, which was reported stolen. The ignition had been punched with a screwdriver. In the back seat of the Camry were five baggies containing methamphetamine and a glass narcotic pipe. The owner of the Camry testified that it had been stolen from the Florin Mall on May 11. She had never given Thao permission to take the vehicle.
On October 30, 2000, Thao was stopped by a Sacramento sheriffs deputy while driving a red Toyota Camry. In his possession was a set of shaved-down keys. The altered keys fit the Camry. The Camry had been stolen earlier in the day from a private driveway.
Thao took the stand in his own defense with the aid of an interpreter. With reference to the drug charges, Thao asserted that a Detective Piazza had promised him cash payments if information he provided resulted in the arrest of major sellers of narcotics. Thao, who claimed familiarity with the drug underworld, testified that he was assisting the police in tracking down drug dealers. He also testified that he borrowed each of the stolen Camrys from third persons. He denied knowledge that either Camry had been stolen and denied any knowledge of the narcotics found in the first Camry.
DISCUSSION
I
Competency of the Interpreter
Prior to Thaos taking the stand, Matt Marchetti was sworn in to translate testimony from Thaos native language, Hmong, into English. On the last day of Thaos testimony, another interpreter, Pada Masuda, was sworn in to translate due to Marchettis apparent illness.
After closing argument and final instructions and while the jury was deliberating, defense counsel, Robert Dahlberg, brought up the subject of Marchettis competency. Counsel stated that Masuda had told him Marchetti had trouble understanding some of the things she was saying to him in Hmong and that upon inquiry, Thao confessed that he "had some difficulty" understanding Marchetti. Dahlberg asked that the court conduct a hearing into Marchettis competence.
Noting that Thao had spent ample time discussing matters with Marchetti prior to testifying and that there was no complaint about Marchettis services during the course of Thaos lengthy testimony, the court denied the request as untimely. The court acknowledged that it would have given the motion to inquire into the competency of the interpreter "some consideration" if it had been made earlier.
On the day of sentencing, defense counsel again sought a hearing regarding the quality of Marchettis services. Dahlberg told the court "[i]t was my impression during Mr. Thaos testimony that Mr. Marchetti often had to stop, delay, ask for things to be repeated, did not understand what was being said." Dahlberg presented the court with three declarations — two from Hmong court translators raising questions about Marchettis ability to interpret and one from Thao himself.
Lebeka Xiong stated that she "was told" of two instances in which Marchetti had to be replaced in court due to the ineffectiveness of his services. Pada Masuda declared that she had "heard rumors" that Marchetti was not an effective interpreter and that on the one occasion she spoke to him, he had trouble understanding her and his responses were "not very clear and were choppy." Thao stated he had been unable to communicate successfully with Marchetti.
While Dahlberg conceded that the declarations were not "terribly compelling," he requested, based on his clients constitutional right to interpretive services, that the court order a hearing for the purpose of assessing whether Marchetti possessed the skills of a competent interpreter.
The court again denied the request. The court reminded counsel that although Marchetti was not "certified," "[h]es registered. He passed the examination." The court also noted that while Marchetti sometimes stopped and checked with Thao about the translation, it was the courts impression that such conduct demonstrated "consciousness about his interpretation" rather than ineffectiveness or difficulty communicating. Furthermore, Thao was no stranger to the English language as evidenced by testimony that he conversed with narcotics officers in English. Finally, the court found none of the defense declarations persuasive and that the objection to Marchettis interpretive services had come too late in the proceedings.
Citing his constitutional right to effective interpretive services and asserting that it was "apparent" the defendant was having difficulty communicating with his interpreter during his testimony, Thao contends that the trial court abused its discretion in refusing to order a hearing into Marchettis competency. We disagree.
California Constitution, article I, section 14 guarantees a criminal defendant who is unable to understand English the right to interpretive services. (People v. Aranda (1986) 186 Cal.App.3d 230, 236-237 (Aranda).) The constitutional right, however, extends only to competent interpretive services. (People v. Estrada (1986) 176 Cal.App.3d 410, 415.) Procedural irregularities in the appointing of an interpreter do not implicate that right and may be waived if not timely asserted. (People v. Superior Court (Almaraz) 89 Cal.App.4th 1353, 1359-1360 (Almaraz).) Moreover, the question of an interpreters competence is a factual one addressed to the trial court. (Aranda, supra, 186 Cal.App.3d at p. 237; People v. Roberts (1984) 162 Cal.App.3d 350, 355.)
Substantial evidence supports the trial courts determination that the defense had not raised sufficient doubts about the competency of Marchettis interpretive services to require a hearing, especially at such a late stage of the proceedings. It is undisputed that Thao was permitted to confer with Marchetti for 15 to 20 minutes prior to taking the stand, and he did not once complain that he was having difficulty communicating with him. While Thaos attorney suggested that Thao felt "intimidated" by the proceedings and that "everyone felt pressured to move the testimony forward," on this record these assertions are speculative and not supported by the trial transcript. Furthermore, defense counsel, who was presumably familiar with the substance of his clients testimony well in advance, never protested while Thao was on the witness stand that his clients story was not accurately being conveyed to the jury. The posttrial declarations filed by other court interpreters were singularly unimpressive, based as they were on innuendo, rumor and hearsay.
Thao attempts to buttress his argument with the fact that the trial court did not follow the procedures prescribed in California Rules of Court, rule 984.2 (further references to rules are to the California Rules of Court) before permitting Marchetti, a noncertified interpreter, to translate.
Rule 984.2 sets forth procedures for the appointment of a noncertified interpreter in a criminal case. A noncertified interpreter may be appointed if the presiding judge of the court finds the interpreter to be provisionally qualified and signs an order that allows the interpreter to be considered for appointment (rule 984.2(b)(1), and if the judge in the particular proceeding finds on the record that good cause exists to appoint the noncertified interpreter and that the interpreter is qualified (see rule 984.2(b)(2)). If a judge is unable to obtain a certified interpreter after a diligent search, the judge shall inform the defendant that "(1) the proposed interpreter is not certified, (2) the court has found good cause to appoint a noncertified interpreter, and (3) the court has found the proposed interpreter to be qualified to interpret in the proceeding." (Rule 984.2(d).) Any objection or waiver by the defendant must be placed on the record. (Ibid.) Finally, the rule provides that the minute order or docket shall record certain specified information for each noncertified interpreter. (Rule 984.2(e)(2).)
However, noncompliance with rule 984.2 is a procedural defect only (Almaraz, supra, 89 Cal.App.4th at p. 1360) and thus subject to normal rules of waiver (see generally People v. Saunders (1993) 5 Cal.4th 580, 589-590). Thaos failure to object on the basis of noncompliance of rule 984.2 deprived the trial court of the opportunity to remedy the claimed procedural deficiencies; accordingly, he has not preserved this claim for appellate review.
Finally, Thaos showing of prejudice as the result of the trial courts ruling is weak and superficial. There is no evidence in the record that Marchetti was inaccurately translating Thaos testimony. Nor is there any claim that a material aspect of the defense counsels version of events was omitted or misrepresented due to the inadequacy of Marchettis services. Thus, assuming the court erred in failing to order a hearing, the error would be harmless under any standard of review. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
For this reason, we also reject Thaos corollary claim that he was deprived of effective assistance of counsel due to his trial attorneys failure to cite proper or sufficient authority in support of his request for a competency hearing.
II
Marsden Motions
Thao brought three separate Marsden motions during these proceedings, expressing dissatisfaction with his trial attorney, Roy Dahlberg. On each occasion, the essence of Thaos grievance was the same, which we summarize as follows.
From the beginning of Dahlbergs appointment, Thao continually tried to offer information to the police in order to obtain leniency with respect to the charges he was facing. According to Thao, the Sacramento detectives were reluctant to set up a meeting with Dahlberg present, viewing him as "difficult." Dahlberg informed the court that the officers told him they were not particularly interested in meeting with Thao but would listen to any specific information he had to offer. Dahlberg advised the detectives that he was willing to participate in a three-way meeting with an interpreter present to "assure that any deals that got made were both witnessed and carried out," but made clear that as a matter of policy, he would not act "as a go between" or "carry information back and forth" between Thao and the police.
Dahlberg eventually scheduled a meeting with the officers, but they did not keep the appointment and showed a general lack of interest in pursuing the matter.
The trial court denied each of Thaos three Marsden motions to discharge Dahlberg. Its reasoning is best summed up in this excerpt from the hearing on the second motion:
"Well, Mr. Thao, it seems to me that you have focused on your hope that you can make some arrangement or deal with the police that will help you in some significant way. [¶] It appears to me that the police are not sufficiently interested in talking to you and that your hope is an illusion. The police could have come and talked to you if they wanted to. Your repeated requests would allow them to come and talk to you if they wished to do that. And it appears to me that they are not sufficiently interested in helping you and thats the reason they do not respond. [¶] . . . [¶] [Mr. Dahlberg] is not obligated — its not his job to be a go-between and to work out some arrangement for you to provide information to the police. Thats not his job. Thats between you and [the] police. And I think youre blaming him for the fact the police have not recontacted you. [& para;] So I dont find that Mr. Dahlberg has failed to assist you. . . . You are unhappy because you didnt work something out with the police that would help you, but thats not Mr. Dahlbergs fault. . . . [¶] . . . [¶] . . . Im not going to discharge Mr. Dahlberg."
Thao now argues he was prejudiced by the courts refusal to discharge Dahlberg from acting as his trial attorney. Citing Dahlbergs comments that "I feel a little conflicted" and "there may be a slight conflict," Thao contends he was thwarted from pursuing an advantageous plea bargain because Dahlbergs refusal to act as a go-between in discussions with law enforcement. Acknowledging that Dahlbergs refusal "might [have been] commendable policy in the abstract," Thao claims it nevertheless created an "obvious conflict with the interests of his client," and that Dahlberg should have been replaced with new counsel.
"A defendant is entitled to have appointed counsel discharged upon a showing that counsel `"`is not providing adequate representation" or that counsel and defendant `"`have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Earp (1999) 20 Cal.4th 826, 876, quoting People v. Memro (1995) 11 Cal.4th 786, 857.) We review the trial courts decision declining to relieve appointed counsel under the deferential abuse-of-discretion standard. (People v. Berryman (1993) 6 Cal.4th 1048, 1070 (Berryman).)
The courts rulings were eminently reasonable. There was no indication that counsel was not representing his client competently and with due diligence. While it is true that Thao was unhappy with Dahlbergs refusal to become a courier between himself and the police, such dissatisfaction, even if it rose to the level of distrust, did not require substitution of counsel. As our Supreme Court has declared "`[I]f a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." (Berryman, supra, 6 Cal.4th at p. 1070.)
We are not persuaded that Dahlbergs conduct deprived his client of a favorable opportunity to plead to reduced charges. The record is clear that Dahlberg was more than willing to participate in aboveboard plea negotiations in the presence of both Thao and law enforcement representatives. It was obvious the police had no interest in such a meeting. Dahlberg cannot be faulted for lack of enthusiasm on the part of the police.
Nor do we see anything ethically improper in Dahlbergs declining to become an intermediary in Thaos effort to secure favorable treatment from law enforcement personnel. Thaos citation to authorities condemning attempts by a prosecutor to communicate with a criminal defendant personally without the participation of represented counsel hardly supports his argument — if anything, it bears out the correctness of Dahlbergs position. We are unaware, nor have we been directed to any authority that supports the proposition that a criminal defense lawyer is ethically compelled to act as a messenger on behalf of his client for "snitch" information in order to attract the interest of state agents in conducting plea bargaining negotiations. In short, Thao has utterly failed to demonstrate that Dahlberg was "embroiled in such an irreconcilable conflict that ineffective representation [was] likely to result." (People v. Fierro (1991) 1 Cal.4th 173, 204.) No Marsden error appears.
III
Apprendi Error
The truth of the prior conviction allegations was tried to the jury. However, in accordance with the mandate of Penal Code section 1025, subdivision (c) (section 1025(c)), the trial court ruled that the question of whether Thao was the person referred to in the documents presented by the prosecution, i.e., the issue of identity, was to be tried by the court.
Section 1025(c) provides: "(c) Notwithstanding the provisions of subdivision (b) [granting a jury trial on the issue of priors], the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury." (Italics added.)
Thus, at the outset of the trial of the priors, the court told the jury: "You are instructed that the defendant is the person whose name appears on the documents which will be received in this case and establish the prior convictions."
Thao now claims that under the United States Supreme Courts holding in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), he was entitled to a jury trial on the issue of identity and that the trial court committed structural error in taking this issue away from the jury. The argument fails on a number of grounds.
First, Thaos argument amounts to an assertion that per Apprendi, section 1025(c) is unconstitutional. However, no such claim was made in the trial court. The California Supreme Court has repeatedly held that constitutional arguments must be raised in the trial court in order to preserve them on appeal. (People v. Williams (1997) 16 Cal.4th 153, 250; see In re Josue S. (1999) 72 Cal.App.4th 168, 170.) Thus, the claim is waived.
Second, the contention is refuted by Apprendis own language. In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490 , italics added.) While Thao recognizes that the italicized language carves an exception for prior conviction enhancements, he attempts to draw a distinction between the question of defendants identity as the person who sustained the prior conviction from the issue of whether the documents show a conviction was in fact incurred.
The purported distinction makes no sense. A defendants identity as a person suffering a prior conviction is subsumed within the larger question of whether he is a recidivist — which, according to the federal Supreme Court, goes to the question of punishment only. (Graham v. West Virginia (1912) 224 U.S. 616, 629 [56 L.Ed. 917, 923].) A statute enhancing a defendants punishment based on a past conviction "is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist." (Almendarez-Torres v. United States (1998) 523 U.S. 224, 226-227 [140 L.Ed.2d 350, 357].) It is precisely because "`recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence" that Apprendi held that a jury trial of sentence-enhancing priors is not guaranteed by the federal Constitution. (Apprendi, supra, 530 U.S. at p. 488 , quoting Almendarez-Torres, supra, 523 U.S. at p. 243 140 L.Ed.2d at p. 368].) Thus, Apprendi did not disturb the bedrock principle that "there is no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement . . . ." (People v. Wiley (1995) 9 Cal.4th 580, 589.)
Consistent with the foregoing principles, the California Supreme Court has declared, post-Apprendi, that "the right to a jury trial of the prior conviction allegations . . . is purely a creature of state statutory law. [Citations.] When a state need not provide a jury trial at all, it follows that the erroneous denial of that right does not implicate the federal Constitution." (People v. Epps (2001) 25 Cal.4th 19, 29.) In the same opinion, the court also held that in enacting section 1025(c), the Legislature intended to abrogate the statutory right to a jury trial with respect to the question of a defendants identity as a prior felon. (People v. Epps, supra, 25 Cal.4th at pp. 25-26.)
As an intermediate appellate court, we are bound by the state Supreme Courts pronouncements. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P.J. and MORRISON, J.