Opinion
F072150
01-02-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON MATTHEW AGUIRRE, Defendant and Appellant.
James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 14CM5116 & 15CMS0331)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter, Judge. James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Jason Matthew Aguirre was convicted of three felonies and five misdemeanors in two different actions. Defendant contends the trial court erred in denying his multiple motions to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant further asserts he was denied effective assistance of trial counsel. We disagree and affirm the judgment.
FACTS AND PROCEEDINGS
On January 2, 2015, defendant waived his constitutional rights pursuant to Boykin/Tahl and pled no contest in case No. 14CM5116 to one count of child endangerment (Pen. Code, § 273a, subd. (a); count 1). In exchange for defendant's change of plea, allegations were dismissed alleging he feloniously abandoned a child (§ 271; count 2), as well as misdemeanor allegations that he used a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 3) and resisted a peace officer (§ 148, subd. (a)(1); count 4). Following the terms of the plea agreement, the trial court placed defendant on felony probation for four years on February 5, 2015.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Unless otherwise designated, all statutory references are to the Penal Code.
The prosecutor stated the factual basis for defendant's plea was that on December 15, 2014, law enforcement officers and a child protective services (CPS) social worker went to defendant's home in Kings County to check on the welfare of defendant's two minor children, who were three and four years old, to investigate reports defendant was smoking marijuana and using methamphetamine in the home. The children had previously been placed in defendant's care by CPS, and he was also on probation subject to a search and seizure condition. When officers arrived, defendant handed one child to a neighbor and hid inside the house with the other child, barricading himself and refusing to open the front door. After officers broke down the door, they found the marijuana smoke so thick indoors, they had difficulty breathing. Defendant admitted smoking marijuana inside the residence with the children present. There was neither food, a refrigerator, bedding, nor clean clothes for the children. The defendant stipulated to a factual basis for the plea.
On February 18, 2015, a new criminal complaint was filed against defendant in case No. 15CMS0331 alleging felony allegations for arson (§ 451, subd. (d); count 1) and stalking and maliciously harassing Jane Doe while subject to a restraining order (§ 646.9, subd. (b); count 2). The complaint alleged five misdemeanor counts for vandalism (§ 594, subd. (a); count 3), resisting a peace officer (§ 148, subd. (a)(1); count 4), violating a criminal protective order (§ 273.6, subd. (a); counts 5 & 6), and possessing drug paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 7). An information with the same allegations was filed on March 17, 2015. An amended information was filed adding count 8, an additional charge of stalking.
On March 4, 2015, the trial court found defendant in violation of his probation in the first case. Prior to trial, defendant brought four Marsden motions, which were all denied by the trial court. At the commencement of trial, defendant's motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta) was granted by the trial court. The court ordered defense counsel to act in a standby capacity. In the middle of trial, the court granted defendant's motion to reappoint his trial counsel.
On April 29, 2015, the jury found defendant guilty of one count of stalking while subject to a restraining order (count 2), resisting a peace officer (count 4), violating a criminal protective order (count 5), and possessing drug paraphernalia (count 7). The jury found defendant not guilty of a second count of stalking while subject to a restraining order (count 8), arson (count 1), vandalism (count 3), and one count of violating a criminal protective order (count 6).
For his conviction in the first case for felony child neglect, the court sentenced defendant to prison for six years on July 13, 2015. The court sentenced defendant to a consecutive term of one year in the second case for felony stalking. Defendant's total prison term is seven years and he was awarded custody credits of 45 days in the first case and 293 days in the second case.
Facts of Stalking Case
Defendant and Jane Doe had two children together. Their relationship ended in May 2014. On February 5, 2015, the court imposed a criminal protective order against defendant, forbidding him to contact or to be near her. Jane Doe had sought the order herself earlier because she was afraid of defendant and he had threatened to kill her.
Although Jane Doe testified she received the protective order on February 15, 2015, the date written on the order is February 5, 2015. February 5, 2015, was also the date of defendant's original sentencing hearing in the first case.
On February 13, 2015, at her home, Jane Doe noticed several balloons and a romantic card adorning her car, which was parked outside. She called officers, who responded and opened the card to find that it was written by defendant. About 30 minutes before arriving at Jane Doe's home, Officer Ryan Obarr had seen defendant walking into front door of his residence carrying balloons.
The next evening, on February 14, 2015, Jane Doe was watching television when she heard the sound of glass breaking. She looked outside and, identifying him by the shoes he was wearing, saw defendant running away. The rear window of Jane Doe's car was broken and a brick was inside. A neighbor across the street, Kayla Camacho, saw defendant hit the car window and then run away. Camacho was able to identify defendant because he had been to her home to visit with her uncle.
A few hours later around 4:00 a.m. on February 15, 2015, Jane Doe saw that her car was on fire, engulfed by flames. Since their relationship ended, defendant had been harassing Jane Doe with text messages and phone calls, enough to force her to change her phone number. In one of those texts, defendant sent the message "Nice car." Jane Doe felt this message to be a threat, because defendant was jealous of her recent positive steps, while he had been struggling.
On February 17, 2015, while on patrol, Officer Martin Gutierrez saw defendant on a bicycle. Because warrants had been issued for defendant's arrest, Gutierrez tried to stop defendant by activating his lights and siren. Defendant looked at Gutierrez, but pedaled away into an alley, discarded the bicycle, and attempted to run away but was apprehended by officers. While searching defendant, Gutierrez found a pipe commonly used to smoke methamphetamine.
Defendant testified he sent Jane Doe messages after their relationship ended because he saw a text message from her that spoke of another man, and defendant was hurt by that. Defendant purchased the balloons and card found on Jane Doe's car, but did not put them there. Defendant said he paid a girl in the neighborhood $5 to place the items on Jane Doe's car. Defendant denied throwing a brick into Jane Doe's car or setting it on fire. Defendant also denied knowing Camacho or entering her home. Defendant's First Marsden Motion
On March 4, 2015, defendant complained that his trial counsel, Michael Woodbury, should be replaced because counsel told him to write down what defendant thought about his situation. Defendant thought Woodbury wanted him write down incriminating information and "was not giving me a chance to be innocent." Defendant said Woodbury wanted him to write down everything that happened.
The trial court explained to defendant that when Woodbury asked him to write down what happened, counsel was not telling defendant what to write down. If defendant did not commit the offense, the court told him to just write down that he did not commit the offense and defendant would not be incriminating himself. Defendant conceded he misinterpreted his counsel's instructions. The court told defendant Woodbury was his attorney and was obligated to represent defendant, not disclose information.
Defendant complained he had not seen his children and there was a restraining order against him seeing the children. Defendant asked how to get the restraining order lifted. The court explained it was not Woodbury's job nor the court's job to facilitate visitation with defendant's children. The court advised defendant to hire another attorney for that purpose because Woodbury was representing defendant in the criminal proceedings. Defendant continued complaining about the restraining order and asked how he could see his children. The court, finding no basis to do otherwise, denied defendant's motion to replace his counsel. Defendant's Second Marsden Motion
Defendant brought his second Marsden motion on March 18, 2015. Defendant told the court that Woodbury walks away from him and does not want to hear defendant is innocent. Defendant asked Woodbury to do several things for him, including matters concerning defendant's children. Defendant said he needed a public defender who would "do the stuff that I ask."
The court asked defendant to be more specific about what defendant wanted Woodbury to do that he was not doing. Defendant said he asked Woodbury for discovery and had not received it. Defendant also asked Woodbury to modify or vacate the restraining order against him so CPS could bring his children to see him. Defendant told the court there had been a preliminary hearing and he had discussed his case once with Woodbury. According to defendant, that was when Woodbury walked out on him.
Woodbury stated he attempted to explain to defendant there were three different proceedings: a criminal case, a dependency case, and a civil case for family court. Woodbury said defendant asked at the preliminary hearing how he could see his children. The court explained defendant would have to proceed in court as with other civil cases. Because new criminal charges involving arson were filed, CPS got involved and recommended no visitation between defendant and his children. Woodbury tried to explain how the new criminal allegations affected CPS and how defendant was involved with two different courts.
Woodbury further explained that during the preliminary hearing, defendant kept talking during the proceedings and counsel could not hear what the witnesses were saying. Woodbury could not get defendant to stop talking. Woodbury told defendant he was trying to answer defendant's questions but if defendant would not allow Woodbury to answer defendant's questions, Woodbury would quit trying to answer them. According to Woodbury, as he was trying to explain defendant's legal status, defendant talked louder and became more agitated. After twice trying to answer defendant's questions, Woodbury told defendant he would not waste more time and would leave. Woodbury acknowledged the situation was confusing, but defendant continued to talk over Woodbury, became agitated, and Woodbury then turned and walked away.
Woodbury explained to the court he had discussed defendant's case with him more than once. On one occasion when Woodbury asked defendant what was his defense, defendant kept demanding his speedy trial rights. Woodbury told defendant he had a right to a speedy trial, but this was not a defense. Woodbury asked defendant to tell him something more specific about his criminal case and defendant responded again that he wanted a speedy trial. Woodbury could not get answers from defendant. It was then that Woodbury asked defendant to write down everything he thought Woodbury needed to know about the case. Defendant did not assist counsel in this way and brought his first Marsden motion.
Defendant told the court that when he accepted a felony plea bargain in the first case, CPS became involved and took his children. Defendant was on probation in the first case when he was charged with arson. Woodbury explained one of defendant's conditions of probation was to comply with the criminal protective order placed on the children. When the court asked defendant if he understood what Woodbury had just explained, defendant replied that he did. Defendant again said he just wanted his children and was upset because CPS could not bring his children to visit him in jail because of the criminal protective order.
The trial court noted it witnessed the preliminary hearing and saw defendant trying to talk with his attorney. The court said to defendant this was fine, but it could be more difficult for Woodbury to do his job if defendant continually interrupted him. The court noted it understood defendant wanted to talk with his children, but Woodbury's job was to represent defendant to fight the new criminal charges. The court told defendant his counsel was trying to get defendant to talk about the case, but defendant was refusing. The court explained defendant did not have to talk to his attorney.
Defendant said, "I'm special ed and it's hard for me to understand situations." The court replied that Woodbury would try to explain everything to defendant, but if defendant kept bringing up his children, Woodbury would walk away from defendant. The court advised defendant that Woodbury had not asked defendant to incriminate himself but only wanted defendant to write down his defense. If defendant had something to tell Woodbury, it would help him "poke holes" in the prosecutor's case. The court denied defendant's Marsden motion. Defendant's Third Marsden Motion
Defendant brought his third Marsden motion on April 8, 2015. Defendant said he was trying to fire Woodbury because Woodbury had no interest in defendant's case. Defendant said Woodbury had been a prosecutor and defendant needed a new attorney, "no matter what." Defendant complained that witnesses during the preliminary hearing described defendant as wearing red shorts, and the witnesses were under oath. Defendant complained that Woodbury had discovery, and a witness in the police report described a male wearing black basketball shorts and a blue zip-up nylon jacket.
Defendant wanted to know why Woodbury would "allow the two witnesses to say" that defendant was wearing red shorts. The court asked defendant how Woodbury was supposed to stop the witnesses from testifying. Defendant replied Woodbury needed to ask the witnesses if they were sure, if they were positive, about what defendant was wearing. Defendant asserted Woodbury knew the witnesses were lying. Defendant had no idea how Woodbury could stop the witnesses' testimony.
Defendant said he knew a potential witness that Woodbury could subpoena. According to defendant, Woodbury told him he could not subpoena the witness. Another witness, defendant's neighbor, could verify defendant was at home when the crime occurred. When the court asked Woodbury about an alibi based on a crime allegedly occurring at 4:00 a.m., Woodbury explained there were several different crimes and defendant was confusing them. Woodbury acknowledged that when defendant talked, Woodbury sometimes had difficulty understanding which of them defendant was referring to. Woodbury replied, "[T]his is a problem I've had every step of the way in the case." Defendant said discovery was first received on March 26th.
The court asked Woodbury if he was able to represent defendant or if there was a conflict. The court recognized there was a communication problem, but wanted to know if Woodbury was still willing to represent defendant. Woodbury replied he was willing to try but was not having much success because of the communication problem. Woodbury explained the issue of the color of the shorts the culprit was wearing during the vandalism incident on February 14th was one involving possibly bad memory and could be used to impeach the witness during trial. Woodbury elaborated that he could never explain this to defendant because defendant would change the subject to other things.
Woodbury said that although defendant claimed they did not receive discovery until March 26th, the defense received it on February 25th. Woodbury spoke to defendant on February 25th during a hearing and told defendant the police report account of events stating the neighbor, Kayla Camacho, drove past defendant during the alleged vandalism incident. Camacho did not exit her car because she thought something suspicious was going on. Camacho recognized defendant because he used to "hang out" with Camacho's brother. This information came out during the preliminary hearing, defendant heard it, and Woodbury discussed it with defendant. The first time defendant indicated he wanted to subpoena Camacho's brother was that day. Woodbury thought that with trial set for April 27th, he had serious doubts he could find Camacho's unnamed brother and subpoena him in the available time.
Woodbury thought the neighbor alibi was with a different neighbor, Franchesca, and was for the arson allegation not the vandalism allegation. Woodbury told the court he had a private investigator but not enough funds to investigate the unknown brother of the first neighbor. If the court authorized funds, Woodbury was willing to search for the witness. Defendant did not identify any further witnesses.
Defendant complained about lying witnesses. The court explained it was not for the attorneys to determine who was telling the truth because that responsibility was with the jury. The court also explained to defendant that defense counsel can impeach a witness who has given inconsistent accounts of the facts. The court told defendant he had a very good, experienced attorney and Woodbury knew what to look for. Woodbury understood the value of an alibi but alibi witnesses could be difficult to take advantage of.
Defendant also complained that Woodbury kept telling him the jury was going to find him guilty. The court asked defendant if he wanted Woodbury to lie to him and tell defendant he would win. Woodbury denied defendant's assertion and denied telling defendant he would be convicted. Woodbury did tell defendant that if he was convicted of the allegations, he would serve more time than he would with the prosecutor's plea deal. Woodbury said he did tell defendant he predicted defendant would be convicted of the vandalism allegation because it would be very unlikely defendant's neighbor would remember defendant being home in his yard with her. Woodbury did not tell defendant he would be convicted of the stalking and harassment allegation, a misdemeanor, but if he was convicted of this charge, he would serve more time.
Defendant asked for a new attorney because he did not feel comfortable with Woodbury. Defendant said he did not want to plead guilty to stalking when it led up to vandalism. Defendant did not want to admit to something when there was lying in the police report. By admitting the stalking charge, defendant would violate his felony probation. The court noted defendant had already violated his felony probation, the court had found him in violation of probation, and defendant was looking at a potential sentence of two, four, or six years in his first case. The court carefully explained the potential sentence defendant faced for the first conviction until defendant indicated he understood the possible sentence he faced for that offense.
The court informed defendant he could hire his own attorney but found no sufficient basis to relieve Woodbury as defendant's counsel. The court authorized $1,000 in additional funds for an investigator to seek potential defense witnesses. Defendant's Fourth Marsden Motion
Defendant brought his fourth Marsden motion at the trial confirmation hearing on April 24, 2015, three days before the beginning of the trial in the second case. Defendant told the court that Woodbury verbally abused him by cussing at him. Defendant said he did not want to take verbal abuse. Defendant explained Woodbury never talked to him about the "D.A. report." Defendant did talk to an investigator who told defendant he would report back to defendant. Defendant gave the investigator all of the information the investigator needed to locate possible defense witnesses.
According to defendant, Woodbury asked defendant his clothing size for the trial and told defendant he would have to waive time for trial. This was all Woodbury asked defendant. Defendant asked Woodbury what the investigator reported. Referring to Woodbury's understanding of what the investigator told Woodbury, Woodbury told defendant that defendant told his neighbor to lie and also told her he knew how to kill someone. Defendant told Woodbury he wanted to know if the investigator asked defendant's neighbor if he was with her on the 14th or 15th but he received no answer to this question. The detective also talked to another witness who was going to testify against defendant that she saw defendant vandalizing using a brick. Defendant asked Woodbury about whether the investigator contacted the correct brother of one of defendant's neighbors as an alibi witness. Defendant insisted to Woodbury the witnesses against him were lying and he was innocent of the allegations. Defendant said he and Woodbury were arguing when Woodbury cussed at defendant and took off.
Defendant wanted to subpoena the parents of one of the witnesses against him because defendant said she was lying. Defendant claimed he had a conflict of interest with Woodbury and insisted Woodbury was not there to help him. Defendant repeatedly stated he was not getting any help.
Woodbury explained he "was unable to answer some of the questions he's raising, because as I tried to respond to these points he was shouting at me increasingly loudly." Woodbury was concerned defendant would be disruptive because court was already in session. Woodbury told defendant that if defendant did not bring his voice down, Woodbury would leave. Defendant continued shouting at Woodbury, so he left. Woodbury did not cuss at defendant. Woodbury explained that what defendant called the "D.A. report" was actually the private investigator's report. Woodbury was trying to explain to defendant why the investigator did not return to see defendant but could not tell him anything because defendant was shouting and Woodbury could not get through the noise. Woodbury was able to ask defendant his clothing size.
Woodbury explained the issues about a continuance and transcripts were resolved. Woodbury was trying to explain to defendant that the investigator learned from defendant's neighbor, Franchesca Goldman, that defendant talked about killing someone. Goldman thought defendant acted strangely and was up at all hours of the day and night. Goldman was supposed to be the alibi witness.
As for providing an alibi, Goldman was asked about February 14th and 15th and said she did not see defendant at all on the 14th and saw him only briefly on the 15th prior to the police arresting defendant. When Goldman saw defendant, he told her to tell the police she saw him at home on the 14th and 15th. Goldman told Woodbury she would not lie for anyone and would not make up stories to help defendant. As Woodbury tried to explain this to defendant, defendant's tone escalated to the point that Woodbury could not complete a sentence. Based on what the investigator learned, Woodbury did not plan to call Goldman as a trial witness.
As for the brother of defendant's other neighbor, Kayla Camacho, Woodbury explained it was actually Camacho's uncle who was defendant's friend, not her brother, but the police report inaccurately referred to Camacho's brother. The uncle was in jail at that time. Camacho's brother, who was only 16 years old, had nothing to do with defendant. Woodbury could not articulate this information to defendant because defendant was shouting so loudly. Defendant replied that Woodbury "can't just sit up here and fib," demanded his attorney subpoena the neighbor with the alibi, and claimed Woodbury was not defending him. Defendant said he needed another attorney and could not afford to hire his own.
The trial court denied defendant's motion for new counsel, explaining Woodbury was in control of who he chose to subpoena and who to call as a witness. The court further explained Woodbury had done an investigation and for logical reasons had decided not to call witnesses that defendant wanted to testify. Defendant asked for a new judge to look at his case. Woodbury told defendant "no." Defendant's Faretta Motion
At the commencement of trial, defendant made a motion to represent himself pursuant to Faretta. After giving proper cautionary Faretta advisements to defendant, the trial court granted defendant's motion but had Woodbury remain in court during the trial should defendant change his mind about representing himself. Midway through the trial, defendant changed his mind and the trial court reinstated Woodbury as defendant's counsel. During the Faretta hearing, defendant told the court he had a high school education. When asked to execute a Faretta waiver form, defendant asked the court if he could read it first. As Woodbury was handing over discovery documents to defendant, there was mention of text messages that were sent between the victim of the vandalism and defendant.
Reading off the waiver form, defendant told the court the form stated he understood he had the right to use the process of court to subpoena witnesses. Defendant read off another section of the waiver form during the hearing. When asked by the court if he read the Faretta form waiving his right to counsel, defendant replied affirmatively. Defendant said he initialed the document, requested a copy of the waiver form, and told the court he had no questions about what he just executed. Despite all indications to the contrary, in granting the Faretta motion the trial court made the comment that defendant was illiterate.
In preparation for the sentencing hearing, defendant wrote a two-page letter to the court seeking a reduced sentence. Although the letter has some grammatical mistakes, it is cogent and well composed.
DISCUSSION
Defendant contends the trial court erred in denying his second, third, and fourth Marsden motions. Defendant further argues he was deprived of effective assistance of trial counsel, depriving him of his rights under the Sixth and Fourteenth Amendments of the United States Constitution.
When a defendant seeks substitution of appointed counsel pursuant to Marsden, the trial court must permit the defendant to explain the basis of his or her contention and to relate specific allegations of inadequate performance. The defendant is entitled to relief if the record clearly shows appointed counsel is not providing adequate representation or defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. The denial of a Marsden motion is reviewed for abuse of discretion. Courts do not abuse their discretion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. (People v. Taylor (2010) 48 Cal.4th 574, 599; People v. Smith (2003) 30 Cal.4th 581, 604.)
A defendant is entitled to substitute counsel on a proper showing that his or her constitutional right to counsel would be substantially impaired. (People v. Streeter (2012) 54 Cal.4th 205, 230; People v. Nakahara (2003) 30 Cal.4th 705, 718.) To establish inadequate representation, a defendant must first show his or her attorney's representation fell below an objective standard of reasonableness under prevailing professional norms and, second, that he or she was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
There is no Marsden error when the trial court allowed the defendant to fully state his or her complaints, carefully inquired of them, and defense counsel responded point-by-point. This is especially true when defense counsel correctly understood his or her duty. In negotiating a plea bargain, for instance, counsel must present and evaluate all plea offers. To the extent there is a question of credibility between the defendant and counsel at the hearing, the trial court is entitled to accept counsel's explanation. Heated exchanges between attorney and client, alone, do not require substitution of counsel absent an irreconcilable conflict. (People v. Smith (1993) 6 Cal.4th 684, 696.)
A defendant may not force the substitution of counsel by his or her own conduct that manufactures a conflict. (People v. Smith, supra, 6 Cal.4th at p. 696.) Furthermore, a defendant "cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney." (People v. Michaels (2002) 28 Cal.4th 486, 523.) If a defendant's asserted lack of trust in, or inability to get along with, appointed counsel were sufficient to compel appointment of substitute counsel, defendants effectively would have veto power over any appointment and by a process of elimination could obtain appointment of a preferred attorney, which is not the law. (Ibid.)
Defendant levels a series of complaints about Woodbury's representation. During the second Marsden hearing, defendant argued to the trial court that Woodbury walked away. Defendant asserts Woodbury's request to have him write things down was an unrealistic task because the trial court said defendant was illiterate. Defendant argues that when he did finally write something down, Woodbury noted during the third Marsden hearing that defendant had not included anything about Camacho's unnamed brother and counsel did not show the letter to the court which would have indicated defendant's level of literacy. Defendant argues there were clear conflict and communication problems between himself and Woodbury. Woodbury conceded a communication problem during the third Marsden hearing and said he was willing to keep trying but added he was not having much success.
At the fourth Marsden hearing, defendant complained Woodbury had failed to follow up on Kayla Camacho's family member who Camacho allegedly relied on to support her identification of defendant. Woodbury had serious doubts he could find this family member before trial. Defendant further alleged that Woodbury walked away from him during a meeting in the jail.
Although the trial court commented that defendant was illiterate, there is little if any evidence in the record to support the trial court's statement. During the Faretta hearing, defendant read from the Faretta form to waive counsel, explained he had a high school education, and he wrote a two-page letter to the court for the sentencing hearing. Defendant's letter for the sentencing hearing has some grammatical mistakes, but is otherwise well composed and makes a cogent plea for a shorter sentence. When defendant stated during the first Marsden hearing that he did not want to write an account of events surrounding the allegations, defendant never indicated it was because he could not write. Defendant acknowledged that he misunderstood Woodbury's intent and thought Woodbury was asking him to compose a confession. Defendant later wrote an account of events to Woodbury. Also, the prosecution's case included several text messages from defendant to Jane Doe. As to the trial court's comment, we cannot discern from the record if there is a transcription error, the trial court misspoke, or if the trial court's apparent finding that defendant was illiterate was incorrect.
The question of defendant's literacy, however, is not germane to our resolution of whether trial counsel inadequately represented defendant or whether there was an irreconcilable conflict between attorney and client. It was defendant, not his trial counsel, who refused to communicate. According to Woodbury, defendant often yelled at him during their meetings, making it nearly impossible for Woodbury to discuss defendant's case. A defendant may not force the substitution of counsel by his or her own conduct that manufactures a conflict. (People v. Smith, supra, 6 Cal.4th at p. 696.) Furthermore, a defendant "cannot simply refuse to cooperate with his [or her] appointed attorney and thereby compel the court to remove that attorney." (People v. Michaels, supra, 28 Cal.4th at p. 523.) A defendant's asserted lack of trust in, or inability to get along with, appointed counsel is insufficient to compel appointment of substitute counsel. (Ibid.)
The difficulties in attorney-client communication were not the result of an irreconcilable conflict between defendant and Woodbury. They were entirely the result of defendant's rude and obstructionist behavior. The trial court was entitled to discount defendant's assertions that Woodbury intentionally cussed at him and walked away. The court could accept Woodbury's account of events. To the extent there is a credibility question between defendant and counsel at the hearing, the trial court is entitled to accept counsel's explanation. (People v. Smith, supra, 6 Cal.4th at p. 696.) Heated exchanges between attorney and client, alone, do not require substitution of counsel absent an irreconcilable conflict. (Ibid.)
There was some pretrial confusion concerning which of Kayla Camacho's relatives associated with defendant, making possible her identification of defendant as present the evening of the vandalism. This, too, was sorted out by the fourth Marsden hearing when Woodbury pointed out there was a mistake in the police report because it referred to Camacho's brother when defendant's acquaintance was Camacho's uncle. Woodbury's concern about being able to find the uncle in time for trial, a point defendant belabors in his opening brief, was of little or no import to defendant's defense.
Camacho recognized defendant because of past encounters with him and her uncle. Contact with Camacho's uncle was not key to defendant's defense or Camacho's ability to identify defendant. Woodbury did not appear interested in calling Camacho's uncle, who was in jail at the time of the fourth Marsden hearing. As Woodbury was trying to explain to defendant that the police report inaccurately referred to Camacho's brother rather than her uncle, defendant was yelling at his attorney. Defendant cannot manufacture error by shutting down communications with his trial attorney.
Despite defendant's behavior, Woodbury was ready to defend him for trial. Woodbury was removed as defendant's counsel at the beginning of the trial, but acted as standby counsel and was reappointed during the trial to represent defendant. Woodbury had successfully hired an investigator to track down potential defense witnesses but decided not to call those witnesses because they could not assist defendant's case.
The People correctly point out that most of defendant's complaints about Woodbury involved trial tactics. This was especially true of whether to call the alleged alibi witness, Franchesca Goldman. As Woodbury explained to the trial court during the fourth Marsden hearing, he did not want to call Goldman because she could not provide an alibi for defendant and she refused to lie for him though he had asked her to do so.
Defendant argues he was in dispute with Woodbury over whether the case was being properly investigated, but Woodbury used the services of an investigator and made a reasoned decision not to call witnesses he believed would not assist defendant's case. The decision to call or not call a witness or to further investigate Camacho's family members—especially based on an error in the police report discovered by Woodbury's investigator—is not an irreconcilable conflict and does not demonstrate that trial counsel was ineffective. (People v. Cole (2004) 33 Cal.4th 1158, 1192 [alleged inadequate investigation, trial preparation, and trial strategy are tactical disagreements which by themselves do not constitute an irreconcilable conflict between attorney and client]; People v. Fierro (1991) 1 Cal.4th 173, 206-207, disapproved on other grounds in People v. Thomas (2012) 54 Cal.4th 908, 941 [Marsden motion properly denied where dispute between defendant and trial counsel involved trial strategy, including which crimes to admit and what witnesses to call during penalty phase of trial].)
Furthermore, a trial court is not required to conclude an irreconcilable conflict exists if the defendant has failed to make a sustained good faith effort to work out disagreements with counsel and has failed to give counsel a fair opportunity to demonstrate trustworthiness. (People v. Crandell (1988) 46 Cal.3d 833, 860, criticized on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Although defendant yelled at his counsel during the initial stages of the proceedings and otherwise made communication difficult, by the conclusion of each Marsden hearing, defendant learned about his counsel's tactical decisions and why potential witnesses were not being called at trial.
Although defendant elected to represent himself at the commencement of trial, he ultimately sought Woodbury's reappointment to finish the trial and to represent him during sentencing. The record demonstrates that as difficult as defendant tried to make the communication process with Woodbury, ultimately they were able to work together. There was not an irreconcilable conflict between attorney and client, nor has defendant demonstrated Woodbury's representation was below professional norms. The trial court did not err in denying defendant's Marsden motions.
A defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018.) A reasonable probability is one sufficient to undermine confidence in the outcome. The second question is not one of outcome determination but whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1018.)
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. (Id. at p. 390; see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
Prejudice
Marsden error is not reversible per se. (People v. Chavez (1980) 26 Cal.3d 334, 348-349.) Where Marsden error occurs, the error is not prejudicial if it is harmless beyond a reasonable doubt pursuant to Chapman v. California (1967) 386 U.S. 18. (People v. Reed (2010) 183 Cal.App.4th 1137, 1148-1149.) Because the trial court in Reed failed to make a proper inquiry pursuant to Marsden, leading to a silent record concerning that defendant's claims, Reed found the error was prejudicial under the Chapman standard of review. Here, unlike Reed, the trial court conducted four thorough Marsden hearings, allowing defendant to air all of his challenges to Woodbury's representation.
Woodbury pursued all of the demands made by defendant in the Marsden hearings. Woodbury obtained copies of jailhouse phone calls sought by defendant, he asked Camacho during trial about discrepancies in her observations of defendant and her familiarity with him, and he investigated both Camacho's brother and defendant's neighbor and learned neither suggested potential witness would be helpful to defendant at trial. Woodbury learned the neighbor was too risky and could convey damaging information about defendant, and the police report referred to Camacho's brother by mistake. Many of defendant's concerns during the Marsden hearings centered around the vandalism charge, an allegation the jury acquitted defendant of. Defendant was also acquitted of felony arson and one of two felony stalking allegations. Of those counts the jury found true, especially the felony stalking allegation, there was substantial evidence in the record based on matters completely unrelated to defendant's complaints about Woodbury during the Marsden hearings. Even if the trial court erred in its Marsden rulings, any error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
/s/_________
BLACK, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------