Opinion
C071300
02-21-2017
THE PEOPLE, Plaintiff and Respondent, v. SANTINO ZECHARIAH DEANDA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 11F03779)
Having been found guilty by a jury of committing 10 sex offenses involving child pornography and sexual acts with the ten-year-old daughter of his wife, the trial court sentenced defendant Santino Zechariah Deanda to prison for 85 years to life, plus 13 years. On appeal, defendant contends the trial court violated his constitutional rights when it denied him a continuance to retain private counsel to file a new trial motion and when it failed to hear all of his complaints related to a purported Marsden motion. He also requests this court review the sealed records concerning the victim to ensure the trial court ordered all the relevant documents disclosed.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We affirm.
DISCUSSION
Given defendant's contentions on appeal, a summary of the facts underlying the convictions is unnecessary.
I. Continuance
A. Background and Defendant's Contentions
The trial court scheduled sentencing approximately five weeks after the verdicts were rendered. On the date set for sentencing, defendant requested a six-week continuance because defendant and his mother were attempting to hire private counsel to file a new trial motion. During the proceedings on defendant's motion to continue, the trial court said, "Let's do this. Let's close this up right now and treat this kind of as a Marsden Motion." (Italics added.) By that point in the hearing, defendant had already personally explained in open court some of his reasons for wanting to hire a private attorney. During the in camera proceedings, the trial court allowed defendant to explain three of the "most important things" that defendant wanted to tell the court. Defendant voiced three complaints about testimony and the evidence. The trial court denied defendant's request for a continuance to hire counsel.
Defendant contends the court violated his constitutional rights when it denied him a continuance to retain private counsel to explore and possibly file a motion for a new trial. We disagree.
B. Analysis
Continuances are granted only upon a showing of good cause. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) The trial court has discretion to decide whether to grant a continuance to allow a defendant to retain an attorney of his choosing. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) When the trial court denies a defendant's request for a continuance, the burden is on the defendant to establish an abuse of that discretion. (People v. Strozier (1993) 20 Cal.App.4th 55, 60.) In determining whether the denial was so arbitrary as to deny due process, we look to the circumstances of each case, paying particular attention to the reasons presented to the trial court at the time the request was denied. (People v. Courts (1985) 37 Cal.3d 784, 791.)
Here, defendant has not carried his burden of demonstrating that the court abused its discretion in denying the continuance or that the court's decision was arbitrary. At sentencing, defendant requested a six-week continuance to locate and retain new private counsel. His mother reportedly had appointments with two different criminal defense attorneys. Neither attorney was present; nor had either been retained or made a request to substitute in. The trial court engaged the parties in an extended discussion about whether to allow the continuance. It took into account concerns about unnecessary delay, and that defendant had already had five weeks since the verdicts to hire new counsel, and had still not found anyone to represent him. Not only had new counsel not been retained, it was not clear if new counsel would be retained. And even if someone were retained, it was not clear how much time retained counsel would require to review the record to determine if a motion would even be filed.
Furthermore, although defendant believed he had grounds to file a motion for a new trial, the court felt it was in a position to assess these preliminary claims and it observed nothing during trial that might give rise to the filing of the motion. Nor did defendant's trial counsel believe there were grounds to file such a motion. Nonetheless, the trial court permitted defendant to personally explain his reasons for believing a new trial motion was warranted -- even closing the courtroom to the public and prosecutor on its own motion to allow defendant to speak further about his concerns.
We note that no issues that could have been raised as grounds for a new trial have been raised on this appeal. On this record, there was no error, constitutional or otherwise, in the court's denial of defendant's request for a continuance.
II. Marsden
Defendant argues that the trial court erred in failing to fully hear a purported Marsden motion. He argues that the trial court did not let him "express all of his reasons for requesting substitute counsel." However, the record reflects that defendant never made a Marsden motion.
When a criminal defendant requests appointment of substitute counsel, the trial court must permit the defendant to explain the specific reasons why the defendant believes current counsel is not adequately representing him. (Marsden, supra, 2 Cal.3d at pp. 123-124.) "[I]f a defendant requests substitute counsel, the trial court is obligated, pursuant to [the] holding in Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney." (People v. Sanchez (2011) 53 Cal.4th 80, 90 (Sanchez), italics added.) "[T]he court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate." (People v. Webster (1991) 54 Cal.3d 411, 435.) Denial of the opportunity to explain constitutes an abuse of discretion. (Marsden, at pp. 123-124.) Substitute counsel must be appointed if the defendant makes a showing that his right to counsel has been " ' " 'substantially impaired.' " ' " (Sanchez, at p. 90; Webster, at p. 123.)
However, the court's duty to permit a defendant represented by appointed counsel to state the reasons for dissatisfaction with counsel pursuant to Marsden only arises when the defendant in some manner moves to discharge his current appointed counsel and substitute another appointed counsel. In this context, there must be some " 'clear indication' " by defendant or his current appointed counsel that the defendant wants the court to appoint a substitute attorney. (Sanchez, supra, 53 Cal.4th at pp. 84, 89-90.) Here, defendant did not request appointment of substitute counsel; he requested a continuance to obtain privately retained counsel and the trial court conducted proceedings in open court and an in camera hearing for the purpose of determining whether there was good cause for the continuance. Thus, the trial court did not err by not conducting a Marsden hearing.
Defendant also asserts the trial court actually did conduct a Marsden hearing and complains that the court limited his presentation to three reasons why he wanted new counsel. He points to the trial court's sua sponte order sealing the proceedings and treating the in camera proceedings as " 'kind of as a Marsden motion.' " Defendant contends this somehow relieved him of the responsibility of making a Marsden motion. We disagree. Again, our high court has stated that the Marsden procedure is not triggered unless the defendant makes a " 'clear indication' " that he wants the court to appoint a different court-appointed attorney. (Sanchez, supra, 53 Cal.4th at pp. 89-90.) Defendant never sought to substitute his appointed counsel with new appointed counsel.
III. Sealed Education and Child Protective Services Records
Defendant asks us to review the sealed reporters transcript and documents in connection with his request to disclose school and Child Protective Services (CPS) records to determine whether the trial court abused its discretion in disclosing only the one document it disclosed. (See Pennsylvania v. Ritchie (1987) 480 U.S. 39, 59-61 [94 L.Ed.2d 40, 58-60] (Ritchie); see also Welf. & Inst. Code, § 827, subd. (a)(1)(P); Cal. Rules of Court, rule 5.552(c), (e).)
Before the in limine motions in the trial court, defense counsel made a request for release of juvenile records pertaining to the victim in the juvenile court. In connection with that request, counsel declared, "I am informed and believe that [the victim] falsely accused her parents of prior abuse. These false accusations are likely admissible for impeachment. In addition, I am informed and believe that [the victim] was molested by a different male previously and such information would likely be admissible to explain her knowledge of how to describe the sex acts she is alleging against [defendant]." In support of a later request to the trial court to release CPS records, counsel for defendant submitted a declaration in which she declared, "I am informed and believed that [the victim] made prior allegations of mistreatment and/or abuse by both [her mother and defendant]. I am further informed and believe that those allegations were unsubstantiated during a prior CPS investigation."
During the hearing on the in limine motions, the parties indicated that the police reports made reference to CPS records related to allegations underlying the charges in this case as well as a prior referral in 2006 concerning alleged sexual abuse of the victim and her sister. The 2006 matter was determined to be unfounded. Counsel for defendant requested the court release "anything related to this particular investigation [of the current case] and anything relating to [the victim], as opposed to her sister [], to any allegations that [the victim] has made regarding any type of abuse, sexual or physical, towards [defendant] or her biological mother [], and specifically any allegations that were deemed to be unfounded." Counsel argued that such information was relevant to the victim's credibility. Counsel also told the court, "I further believe, that throughout that investigation, [the victim] may have very well disclosed information regarding sexual abuse by one of her mother's prior boyfriends. As I have indicated previously, I believe that would appropriately be the subject potentially of a 782 motion." The trial court indicated it would review the file for reports relating the information counsel requested, and address later whether anything in the reports was admissible as a false accusation on the issue of the victim's credibility.
The reference to "782" was to Evidence Code section 782, pertaining to evidence of prior sexual conduct of the victim.
Regarding the school records, defense counsel explained that she had been told the victim got "into a lot of trouble both at home and at school, was disciplined for lying, stealing, other things that involved issues related to her credibility and potentially moral- turpitude kind of acts." Counsel sought disclosure of records reflecting such conduct and discipline, and the court indicated it would review the records for such information. Counsel also told the court that the victim may have made disclosures reflected in the school records concerning the instant case and the prior allegations of abuse that had been found unsubstantiated; counsel sought disclosure of those records as well. The court indicated it would look for anything "exculpatory" concerning the allegations related to the current charges.
On a subsequent date, the trial court told the parties it had reviewed the records. It indicated there was one page it determined to be "releasable and relevant, having balanced the Defendant's right to confront against the Complainant's right of privacy which was asserted by [CPS]." The court provided that page to both counsel. The court ordered the rest of the documents sealed. However, the court indicated it desired to speak with the defense in camera about other records it had reviewed.
During the in camera proceedings the trial court indicated it had reviewed the records related to the 2006 CPS investigation and found there to be nothing exculpatory relative to the current charges. However, the court asked for clarification as to what defense counsel was seeking. Counsel again stated that she was seeking "allegations made by [the victim] that were investigated and found to be unsubstantiated." The trial court told counsel that the 2006 allegation was made by a third party as to "something suspicious going on over there" and after CPS talked with everyone involved, there was nothing to warrant further investigation. The court explained that "if anything comes up, I will still have in mind whether there is releasable material in those records that I reviewed."
We understand this statement by the trial court to be a recognition of the court's continuing obligation to disclose documents that may become material based on the trial proceedings. (Ritchie, supra, 480 U.S. at p. 60 ["the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as the proceedings progress, and the court would be obligated to release information material to the fairness of the trial"].)
On appeal, neither party identified which document was disclosed by the trial court. Defendant asks us to review the records to look for "impeaching or other relevant matter therein," including "evidence of psychiatric disturbance, mendacity, false complaints, and any other evidence that may be relevant to the case, including any records related to prior accusations of molestation of [the victim]." This request is broader than the request made in the trial court. We have reviewed the records for the information the trial court was asked to look for. Our review has included the following records, provided under seal: records from Sky Q Internet Service, which is a service provider for Visions in Education; records from Sacramento City Unified School District; records from San Juan Unified School District; records of Paris Union School District #95; and records from CPS. We also reviewed the reporter's transcript of the in camera proceedings in which the trial court discussed its review of the 2006 CPS investigation. Having done so, we find no documents in the CPS or education records containing prior accusations of abuse made by the victim against defendant or anyone else, no records indicating the victim was molested by anyone else and no records reflecting lying or stealing by the victim or any school discipline. Nor do we find any records that appear potentially exculpatory based on our understanding of the record before us.
For example, no request was made in the trial court for "evidence of psychiatric disturbance" and no information or argument even remotely establishing good cause was provided to the trial court by defendant to justify release of such information. Nor has defendant provided factual or legal analysis on appeal establishing good cause or otherwise explaining why we should disclose any such information, if it exists. --------
DISPOSITION
The judgment is affirmed.
MURRAY, J. We concur: RAYE, P. J. BLEASE, J.