Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F6372
HULL, J.A jury found defendant Leon Wilson Crockett guilty of corporal injury to a cohabitant, false imprisonment by violence or menace, and assault with force likely to cause great bodily injury. The trial court found he had three prior strikes and four prior prison terms and sentenced him to 29 years to life in prison.
On appeal, defendant raises the following five contentions: (1) there was insufficient evidence he caused corporal injury; (2) his constitutional rights were violated because the prosecutor had represented him in the past on a parole violation; (3) the court erred when it refused to allow him to personally address the court at sentencing and to present letters allegedly written by the victim; (4) the court erred in failing to hold a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) after he complained his attorney was under the influence of alcohol; and (5) his sentence was cruel and unusual, and defense counsel was ineffective for failing to raise the issue. We affirm the judgment.
Facts and Proceedings
In July 2008, defendant and K.M. had been in an on-again, off-again dating relationship for four or five months. Around 7:00 p.m. on July 30, they visited the home of their friends R. and P. and P.’s 14-year-old son D. Throughout the evening, defendant and K.M. were drinking beer.
About four or five hours after they arrived, defendant was ready to go home and asked K.M. to go with him. She said “[n]o, ” and the two started arguing. Defendant then “got a little crazy”: he pulled K.M. off the couch by her ankles, and she pleaded with him to let go. D. tried unsuccessfully to pull defendant off K.M. R. then called 911.
As R. was talking to the dispatcher, he saw defendant dragging K.M. out the front door by her ankle and wrist, as she yelled for help. K.M. ended up “on her behind next to [R.’s] van.” Defendant was still arguing with her, and D. and P. were “doing what they could to prevent it.”
Police arrived three to five minutes after R. called 911. They ordered defendant to sit on the curb, and eventually he complied. Officer Harry Bishop talked with K.M., who was shaking and crying. She smelled like alcohol, but she was not “noticeably” intoxicated, nor was she slurring her speech or unsteady on her feet. She told Bishop that defendant had dragged her by her shorts and her hair out the front door. He then dragged her by her hair to the front yard. Her feet were off the ground and her legs were dragging on the floor. Officer Bishop saw “on the back of her right leg... near her right calf... an abrasion... about two inches in length” that “was red to pink in color, ” “[h]ad a little bit of loose skin around the fringes, ” and “appeared to be a fresh injury.”
At trial, K.M. denied fighting with defendant that night and said she did not remember her leg being injured. Defendant was still her “friend.”
Discussion
I
Sufficiency of the Evidence of Corporal Injury
Defendant contends there was insufficient evidence of corporal injury to a cohabitant because the People did not prove he caused K.M. to suffer a “traumatic condition.” “‘[T]raumatic condition’” is “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” (Pen. Code, § 273.5, subd. (c); undesignated statutory references that follow are to the Penal Code.)
The gist of defendant’s argument is that it was “just as likely that any mark on [K.M.’s] right leg, if it even occurred that night, was the result of her own stumbling or bumping. In any event, [Officer] Bishop could testify only that the mark on her right calf appeared to be a fresh injury.”
This argument ignores the appropriate appellate standard of review of claims of sufficiency of the evidence. Although it is the duty of the jury to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, that must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572.) The appellate court must accept reasonable inferences the jury might have drawn from the circumstantial evidence, and before a judgment can be set aside, it must clearly appear that on no hypothesis was there substantial evidence to support the jury’s verdict. (Id. at p. 1573.) That was not the case here.
R. saw defendant drag K.M. out the front door by her ankle and wrist. Officer Bishop testified that K.M. told him defendant had dragged her by her shorts and her hair out the front door. Her feet were off the ground and her legs were dragging on the floor. K.M. had “near her right calf... an abrasion... about two inches in length” that “was red to pink in color” bordered by loose skin which “appeared to be a fresh injury.” This evidence was sufficient for the jury to conclude beyond a reasonable doubt that, during the evening in question, defendant caused K.M. to suffered a two-inch abrasion near her right calf.
II
Prosecutorial Impropriety
Defendant contends his constitutional rights were violated because the prosecutor had previously represented him for a parole violation. There was no error.
On November 14, 2008, defendant submitted a letter to the court alleging that his due process right to a fair trial had been violated because the prosecutor had previously represented him on a parole violation. Defendant’s attorney, Adam Ryan, would not file a motion for new trial, so, on December 8, 2008, the court appointed Robert Hammonds as “separate counsel” to determine whether there were grounds for a motion for a new trial. (We address this dual appointment further in part IV of the Discussion.)
On February 20, 2009, attorney Hammonds stated there were no grounds for a new trial motion, explaining as follows:
“Mr. Popkes who represented the People at trial had previously represented [defendant] on a parole violation. I determined that that was a parole violation that occurred in May of 2006. Mr. Popkes apparently met with [defendant] one time for a few moments. There was an optional waiver, and I think he received nine months at halftime on that parole violation.
“In reviewing, I’ve taken documents from the Cal PAP, Parole Advocacy Program. I met with Mr. Popkes and spoke with him. I’ve met with [defendant] on several occasions, and I’ve read the entire trial transcript and including a Marsden hearing held prior to the trial, and based on my professional opinion based on all the information I received and my review of the law, I don’t believe that I have a non-frivolous motion for a new trial at this point. I’ve informed [defendant] of that fact.”
The court then relieved Hammonds as counsel and proceeded to sentencing.
Relying mainly on provisions of the Rules of Professional Conduct, civil cases from our state dealing with attorney conflicts of interest, and a handful of out-of-state cases, defendant contends the judgment must be reversed because the prosecutor “had a conflict and represented an adverse interest to a former client who was also a party.”
Despite defendant’s failure to point it out, our Penal Code provides guidance regarding when a prosecutor should be recused. (§ 1424.) Specifically, a motion to recuse a prosecutor “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” (§ 1424, subd. (a)(1).)
There is nothing in this record that shows such a conflict. Before becoming a prosecutor, Popkes met once with defendant for a few moments while representing him on a parole violation that occurred approximately two years before the crimes charged in this case. There was no evidence that Popkes learned confidential information in that previous representation that would have impinged on defendant’s constitutional right to a fair trial. (See People v. Lepe (1985) 164 Cal.App.3d 685, 688 (Lepe) [“It is improper for a district attorney to prosecute a former client without that client’s consent for a crime relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by the former client”].)
Lepe provides a good contrast to the situation here. There, the district attorney filed an information charging Lepe with assault on two people--Herrera and Rodriguez. (Lepe, supra, 164 Cal.App.3d at p. 687.) Previously, the district attorney had defended Lepe in two criminal cases: one was assault on a third party with Herrera and Rodriguez as witnesses; the other was intimidation of Herrera and Rodriguez. (Id. at p. 686.) Lepe’s motion to recuse the entire district attorney’s office was granted, and the People appealed, claiming an abuse of discretion. (Id. at p. 687.) The appellate court affirmed, reasoning the district attorney’s prior representation of Lepe included obtaining confidential information from Lepe: “Lepe had to relate to [the district attorney] the circumstances of the first assault witnessed by Herrera and Rodriguez and his later intimidation of those witnesses. That information necessarily includes the basis for Lepe’s hostility toward the now twice-tormented victims with resultant inference of his propensities toward assault and intimidation.” (Id. at p. 688.)
There was no indication a similar situation occurred here. Defendant has not pointed to any plausible scenario under which the prosecutor would have learned confidential information in his extremely brief representation of defendant on his parole violation or was biased against defendant in any way. Indeed, there is no suggestion the parole violation was in any way related to the current crimes that occurred approximately two years later. On this record, the mere fact the prosecutor represented defendant in the past was insufficient to demonstrate defendant could not receive a fair trial, and there was no error in allowing the prosecutor to try defendant’s case.
III
Sentencing Hearing
Defendant contends the court violated his right to due process when, at sentencing, the court would not allow him to address the court and present letters purportedly written by K.M. We do not agree.
After the court relieved defense attorney Hammonds, it proceeded to sentencing with defense attorney Ryan. The following exchange occurred:
“MR. RYAN: [F]irst of all, we need to address the Romero motion. However, prior to that [defendant] has handed me some documents and asked me to present them to the court. Based upon reasons I can disclose only in a closed session, I’m not going to file those with the Court. [Defendant] is obviously upset about that. I believe it’s tantamount to a Marsden or at least a closed-session hearing without the prosecutor present.
“THE COURT: Okay. Give me just a moment. [¶] All right. Well
“MR. RYAN: I don’t need to be anywhere else....
“THE DEFENDANT: Can I say something, Your Honor?
“THE COURT: Well, you’re represented by counsel, [defendant], and it’s not always a good idea to make statements without conferring with your counsel, so here’s what I suggest we do. [¶]... [¶]
“THE COURT: Why don’t we do this? Why don’t we reconvene at eleven o’clock? I have sort of an urgent matter to deal with on another matter, and that will give me a chance to re-read the sentencing material that I have, and I can address the concerns you just addressed, Mr. Ryan, when we reconvene. We’ll get back together at eleven o’clock this morning. [¶] [Defendant], that would give me a chance to review some material here, and Mr. Ryan has brought up some issue of which you spoke, the fact he wants to present additional papers.”
When court reconvened, the court held an in camera session at which Mr. Ryan stated defendant wanted him to submit “[c]ertain handwritten documents to the Court, ” about which Ryan had a “severe doubt as to their authenticity.” Defendant explained the documents were letters the victim had written him that he had a friend “rewrite” because the jail would not allow him to make copies. The court ruled it would not review these documents because defendant’s attorney believed it was not in defendant’s best interest to submit the letters to the court, and the attorney “control[led] the direction of the case.”
In open session, the court proceeded to sentencing after defense counsel Ryan stated there was no legal cause why judgment should not be pronounced. As the court began explaining why defendant was not eligible for probation, defendant interrupted as follows: “You Honor, can I ask you something?” The court responded, “No. Make sure--Mr. Ryan is going to talk to you and tell you whether it’s appropriate to communicate your comments to me.” After a “[p]ause in [the] proceedings, ” Mr. Ryan stated they were “ready to proceed, ” and the court continued with sentencing.
In People v. Evans (2008) 44 Cal.4th 590 (Evans), the court held that a defendant has a statutory right to state reasons why judgment should not be pronounced at all, but not the absolute right to state reasons for a more lenient judgment. (Id. at p. 597, citing §§ 1200 and 1201.) The limited statutory right a defendant has to be heard in mitigation of punishment requires the defendant to be under oath and subject to cross-examination when making his statement. (Evans, at p. 598, citing § 1204.) And there is no federal due process right to address the court at sentencing other than under oath and subject to cross-examination. (Evans, at p. 600.)
In Evans, after discussing the appropriate sentence, defense counsel stated, “‘Submitted.’” (Evans, supra, 44 Cal.4th at p. 593.) During the pronouncement of judgment, the defendant asked, “‘Can I speak, your honor?’” The trial court replied, “‘No.’” (Ibid.) The Supreme Court noted that “Defense counsel made no attempt to call defendant to testify, and defendant himself did not ask to do so.” (Id. at p. 600.) It concluded, “Under these circumstances, there was a forfeiture of defendant’s right to testify in mitigation of punishment.” (Ibid.)
The same is true here. At the time of sentencing, defense counsel Ryan answered “no” when the court asked if there was “[a]ny legal cause why judgment should not now be pronounced.” When the court began sentencing by noting defendant was ineligible for probation, defendant simply asked the court whether he could ask a question. There was no request either by defense counsel or by defendant to address to the court under oath and subject to cross-examination. Under these circumstances, there was a forfeiture of defendant’s right to testify in mitigation of punishment.
While on the one hand acknowledging we are bound by Evans (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), on the other hand defendant persists that Evans is “tangential” because he “sought to introduce documents, and the record does not establish that he sought to make an unsworn, not-subject-to-cross-examination statement like the defendant in Evans.” Defendant forgets he bears the burden of proving error by an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) The record before us is bereft of evidence defendant was seeking to address the court in a manner approved of in Evans. It is not up to us to speculate that is what defendant was trying to do.
As to defendant’s attempt to introduce letters purportedly written by K.M., the court correctly ruled it was up to counsel to control the litigation and decide whether to submit those to the court. This was especially true where counsel expressed legitimate concerns about the authenticity of the documents. (See People v. Weaver (2001) 26 Cal.4th 876, 925-926 [courts will not second-guess reasonable, tactical decisions of counsel].) The court’s refusal to file those letters and defense counsel’s refusal to submit them to the court did not impinge on defendant’s due process right to present a defense.
IV
The Need for a Marsden Hearing
Defendant contends the court abused its discretion and violated his Sixth Amendment right to counsel when it failed to hold a Marsden hearing after defendant complained defense counsel Hammonds was under the influence of alcohol.
Specifically, at sentencing, defendant complained that attorney Hammonds (who had represented defendant only to investigate into grounds for a new trial motion) “came in here with the influence of alcohol on him, and that ain’t cool. When he was here the last time, I told him the same thing. Why are you coming to see me and smell like alcohol?” In response, defense counsel Ryan argued that defendant’s complaints “should not be discussed here” because “Mr. Hammonds [was] no longer on the case so he can’t be discharged” and “he’s not here.” The court did not address the matter further.
First of all, we note that, at the time of this colloquy, Hammonds was no longer counsel for defendant. Thus, it would make no sense for the court to conduct a hearing to replace an attorney who was no longer counsel for the defendant. And, as we explain, the court did not err in failing to hold a Marsden hearing to replace Hammonds even though he was no longer representing defendant because defendant did not have a right to two attorneys--Ryan and a replacement for Hammonds--to represent him at the same time.
As our Supreme Court has explained, “We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant.” (People v. Smith (1993) 6 Cal.4th 684, 695.) This is exactly what happened here. As the trial court told defendant when appointing Hammonds, “you’ll have two attorneys for a while.... I’m not relieving Mr. Ryan, but I am appointing you separate counsel to review the new trial motion.” Under Smith, the court erred in appointing Hammonds in the first place, at least so long as Ryan remained counsel for defendant. (Id. at pp. 695-696.)
What the court should have done was conduct a Marsden hearing regarding Ryan to determine whether there were adequate grounds to appoint new counsel and, if so, relieve Ryan for all purposes. (People v. Smith, supra, 6 Cal.4th at pp. 695-696.) New counsel could then investigate a possible motion for new trial based on alleged ineffective assistance of counsel. (Ibid.) In any event, defendant did not have the right to replace Hammonds with another lawyer while Ryan was his attorney. And, while the record suggests defendant may at one point have been irritated with Ryan because he would not file a new trial motion based on the prosecutor’s prior representation of defendant, he made no objection to Ryan’s continued representation after Hammonds reported to the court and was relieved as counsel. Indeed, the record does not reflect that defendant at any time requested that the court replace Ryan as his attorney.
V
Cruel and Unusual Punishment
For the first time, defendant contends his sentence of 29 years to life was cruel and unusual punishment under the Eighth Amendment to the United States Constitution. By failing to raise the issue in the trial court, he has forfeited it. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. Vance (2006) 141 Cal.App.4th 1104, 1113, fn. 4.) In a supplemental brief, he contends trial counsel was ineffective for failing to make the argument. As we explain, the argument lacks merit, so counsel was not ineffective for failing to make it. (See People v. Osband (1996) 13 Cal.4th 622, 678, 700-702.)
The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, but strict proportionality between crime and punishment is not required. “‘Rather, [the Eighth Amendment] forbids only extreme sentences that are “grossly disproportionate” to the crime.’” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135.)
The United States Supreme Court has upheld life sentences for recidivists even for current nonviolent felonies. (See Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108] [25 years to life under the three strikes law for theft of three golf clubs worth $399 each]; Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144] [two consecutive terms of 25 years to life for two separate thefts of less than $150 worth of videotapes].)
Here, defendant’s current offenses--corporal injury to a cohabitant, false imprisonment, and assault likely to cause great bodily injury--were much more egregious than those of Ewing or Andrade. Moreover, his punishment was not just for those crimes, but was also for his recidivism, which consisted of three prior strikes (assault with a firearm, shooting at an inhabited dwelling/vehicle, and robbery) and four prior prison terms. On this record and against the backdrop of the Supreme Court precedent we have just recounted, trial counsel was not deficient for failing to raise a cruel-and-unusual-punishment argument.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P. J., BUTZ, J.