Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI701820 Rodney A. Cortez, Judge.
Gregory Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant Leon Steven Gates of inflicting corporal injury on a cohabitant. (Pen. Code, § 273.5, subd. (a).) In bifurcated proceedings, defendant admitted having suffered a prior conviction for which he served a prison term. (§ 667.5, subd. (b).) Defendant was sentenced to prison for five years and appeals, claiming some of his Marsden motions and his second motion to represent himself were erroneously denied and a tape of the victim’s 911 call was improperly admitted. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
On August 18, 2007, defendant beat his live-in girlfriend, hereinafter, the victim. More facts will be disclosed as they are relevant to the issues discussed.
ISSUES AND DISCUSSION
1. Denial of Defendant’s Marsden Motions
At defendant’s fourth appearance in this case, the date set for the preliminary hearing, he successfully moved under Marsden to have his attorney, a public defender removed. A conflict panel attorney was appointed in the public defender’s place and about two hours later, defendant moved under Marsden to have him removed. Defendant complained that another conflict panel attorney was representing the victim in another case, he was not getting enough time to consider the deal being offered by the prosecution and he felt pressured by his attorney to take it. He said no one had asked him his side of the case. He also complained that he could not get a fair trial in the court house, where his case was being tried, because it was where he had had his last trial, and the prosecutors, deputy public defenders and conflict panel attorneys had worked together during that trial as a team to ensure that he did not get a fair trial and the prosecutor was out to get him. After the trial court denied the motion, the preliminary hearing proceeded and defendant was bound over for trial.
In his personally authored post-verdict motion to dismiss for a new trial and to reduce his conviction to a lesser included offense, defendant contended that this attorney had a conflict of interest because he represented, in an entirely separate case, a person who, in that case, was the codefendant of the victim in this case.
A second conflict panel attorney represented defendant at three of the next five appearances, on September 11, October 23 and October 26, 2007. At the second of these, defendant rejected an offer the prosecutor made of 16 months, concurrent with defendant’s parole violation. This attorney represented defendant again on November 2, 2007 at Readiness Calendar, with trial having previously been set for November 5. On November 2, defendant made a third Marsden motion, during which he also accused the trial court of being “in cahoots” with the judge who had presided at his last trial and he expressed dissatisfaction with the fact that the prosecutor’s previous offer was not still open. Defendant listed his grievances against this attorney as follows: 1) when counsel first met with defendant, apparently at the jail, counsel asked defendant why he did not take the deal the prosecutor had offered him, 2) counsel had not appeared one of the last three times defendant had been to court, 3) counsel had not done what defendant wanted him to do, 4) counsel did not have defendant’s “best interests” in mind, and 5) counsel and defendant did not get along and had a “serious conflict.” As to the third item, defendant said he wanted a copy of all the discovery and “everything [he’s] entitled to by . . . the United States Constitution” and he wanted it “now.” He also said he wanted a motion to dismiss filed, but was unable to recall what else he wanted done. As to the serious conflict, defendant said, “The issue with [this attorney] is solely personal, . . . I don’t agree with him. I disagree with him about my defense. . . . I just disagree with everything about the way he wants to represent me.” Defense counsel told the trial court that he and defendant had the same goals, but defendant wanted counsel to bring motions which counsel considered to be a waste of time and trial was fast approaching. Counsel said he felt he could talk to defendant about the case and work with him to present a defense and defendant would be able to assist him and give him information in his defense. After defendant unsuccessfully demanded to be appointed cocounsel, with all its attendant privileges, the trial court asked defendant if he felt he had time to ask defense counsel about the things that he wanted explained to him. Defendant replied, “. . . There’s never enough time in these court proceedings for that to happen. And he’s been kind of rude and interrupting and not talking to me about it.” When the trial court asked defendant if he had “specific areas” about which he wanted to talk to his attorney, defendant replied, “No, . . . I would like a different attorney.” Defense counsel asserted that he could communicate with defendant. The trial court found that defendant could communicate about his case with counsel and “that’s really all that’s required.” The court pointed out that counsel did not necessarily have to do everything defendant wanted him to do—that counsel had the education and experience to decide what was best to do. Defendant then expressed concern that since he had brought a Marsden motion against counsel, counsel would be biased against him and would not defend him properly. Counsel said that despite the motion, he would represent defendant to the best of his ability. The court denied the motion, finding that the relationship between defendant and his attorney had not deteriorated to the point that they could not be of assistance to each other. The court added that, as far as it could see, defense counsel had, so far, represented defendant to the best of his ability and it felt he would continue to do so. The court said that it found no bias on counsel’s part that would prevent him from doing so. Defendant then asserted that he would not “use” counsel as his attorney anymore and would not speak to him. The trial court pointed out that they were on the eve of trial and if a new attorney were appointed, trial might have to be continued for another month or two.
Defendant said he would have accepted the previously offered deal of 16 months if he had known then that the case against him was not going to be dismissed merely because the victim could not be located. At that point, the prosecutor was offering a two year low term, concurrent with defendant’s parole violation, at half time.
Defendant asserted that it was two but the trial court correctly pointed out that it was only one.
Four days later, on the first day of trial, motions in limine were heard, defendant waived jury on the prison prior allegation and voir dire began. Defendant made a fourth Marsden motion against the same attorney who was the subject of his third motion, as described above. Defendant complained that his attorney had not filed any of the motions he asked him to. He added, “ . . . I feel these proceedings are unconstitutional and unlawful, and I asked [counsel] to explain to me how they’re not and he had refused to do that.” He also complained that the defense had not had a chance to “screen the phone calls [the prosecutor planned to introduce] and get any evidence on my side as to anything that [the victim] said.” He accused the court and his attorney with cooperating with each other to gather evidence against him. He reiterated that counsel is rude to him and tells him that matters defendant brings up are not relevant but he fails to explain why. He again brought up his allegation that he had been told, not by his present attorney, but by two other attorneys, an investigator and even the court that if the victim failed to appear for trial, the case against him would be dismissed and that was why he refused the 16-month offer. He said he “possibly” would have taken the offer had he known that the case was not going to be dismissed. He accused his attorney of being a “team player” with the prosecution and the court in an effort to “maliciously prosecute” him. Defense counsel listed his experience for the court and told it what he had done in the three or four weeks he had represented defendant. He said that the prosecutor said that he probably would dismiss the case if the victim did not appear, however, she did not, a two year offer was made and he tried to persuade the prosecutor to offer 16 months again, but was unsuccessful. Defendant claimed he was not asked if he had any evidence to offer, specifically a declaration by the victim that she hit defendant first. The trial court pointed out that defense counsel had moved to have the declaration admitted into evidence. Defendant responded that there were other things or witnesses he wanted to produce. The trial court pointed out that defendant was in no position to decide what was admissible. It added that defense counsel could only do those things that he felt had merit. It pointed out that counsel had prevailed on one of the in limine motions and, therefore, defendant’s claim that counsel did not have his best interests in mind was “disingenuous.” The court denied the motion, concluding that there had been no breakdown in the relationship between defendant and counsel and the latter had properly represented defendant to that point. Defendant then asked to represent himself, have a continuance and be granted a change of venue, all of which the trial court denied, the first as untimely and a mere ploy to get his attorney relieved, which would have been his fifth such attempt.
The investigator and court were added to his story since the first time he told it.
Defendant repeated this accusation in his post-verdict motion for dismissal, a new trial and to reduce his conviction to that of a lesser included offense.
The following day, during voir dire, defendant moved again to represent himself. His request was denied on the grounds that it was made merely to delay matters and obstruct the administration of justice. At one point during the People’s case-in-chief, the court noted, “[Defendant has] interrupted [his] attorney no less than 8 or 10 times in the 30 to 45 minutes that we’ve been on the record so far . . . .” The court told defendant to write down what he wanted to bring to his attorney’s attention, then wait until his attorney was about to cross-examine the witness and discuss with him what defendant had written down. Defendant responded, “That’s one of the reasons I tried to bring a Marsden. He won’t talk to me. He won’t gather evidence for me in any way that I want him to help me. He is not allowing me to help in aid of my defense. [¶] . . . [¶] Is it or is it not my constitutional right to help in aid every step of my defense?”
After the verdict, defendant filed a motion for a new trial he authored himself based on the incompetency of his trial counsel, which was denied. In that lengthy motion, he did not once allege that counsel failed to explain things to him or to listen to his suggestions.
In that motion, defendant asked that the prosecutor be charged under section 182, subdivision (a) (2).
“ . . . [T]he state Constitution does not give an indigent defendant the right to select a court appointed attorney.” (People v. Richardson (2008) 43 Cal.4th 959, 996.) “‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 729.) “‘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.’ [Citations.] [¶] We review a trial court’s decision declining to discharge appointed counsel under the deferential abuse of discretion standard. [Citation.] [¶] . . . [¶] ‘[T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence.’ [Citation.] . . . [T]actical disagreements . . . do not by themselves constitute ‘irreconcilable conflict.’ [Citation.] Indeed, a ‘defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.’ [Citation.] . . . ‘[T]he trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1190, 1192.) “‘. . . [A]ppellate courts will not find an abuse of discretion unless the failure to remove appointed counsel and appoint replacement counsel would “substantially impair” the defendant’s right to effective assistance of counsel.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 488.) We cannot conclude that the trial court here abused its discretion in denying both of defendant’s motions aimed at his second conflicts panel attorney. Defendant does not even assert, nor could he, that the failure to dismiss his trial counsel substantially impaired his right to effective counsel.
In his reply brief, defendant, for the first time, asserts, at great length, that the trial court did not “conduct . . . the required inquiry into [his] complaints.” Defendant may not assert this for the first time at this point, when the People have no opportunity to respond. Moreover, the trial court had no duty to inquire into matters that did not evince an irreconcilable breakdown in the relationship between defendant and his attorney, such as counsel’s failure to file all the motions defendant wanted him to and counsel’s failure to be polite to defendant and not cut him off.
During the November 2 Marsden hearing, defendant asserted that the only conflict between him and his attorney was that the latter failed to file a motion to dismiss. Counsel responded to this, explaining that this was the eve of trial, he had just been given a “substantial amount of new evidence” he needed to review and he did not have time to handle what he considered peripheral issues which were unmeritorious. When counsel asserted that he could talk to defendant about the case, work with him in presenting a defense and could receive defendant’s assistance and information in the defense, the trial court asked for defendant’s response to this. Instead of contradicting these representations, defendant demanded access to the law library and when he was told that was possible only if he represented himself, he demanded to be cocounsel. Defendant reasserted his desire to be represented by counsel but added that he also wanted to “be able to help and see the rules in court and the law library so . . . maybe if I see something that I can [do] that I think will help ‘cause . . . he might not have time to look into everything.” He said he wanted defense counsel to explain to him why everything he wanted used at trial could not be and he said he felt there was never going to be enough time for this to happen. However, he was unable to say, when asked, what matter or matters there was insufficient time to discuss with counsel. Defendant then accused counsel of being “kind of rude and interrupting and not talking to me . . . .” However, the trial court explained to defendant that he could communicate to his attorney what he considered the pertinent facts of the case and that was all that was required—that it was then for counsel to decide how to try the case and he was not obliged to do everything the way defendant wanted it done. The only other matter defendant addressed was his fear that counsel was now biased against him because he had brought the motion, a notion counsel dispelled. Defendant cites no authority holding that counsel must explain every tactical decision he makes and must be polite in all his interactions with his client or else an irreconcilable conflict between the two, preventing counsel from adequately representing defendant, exists. These observations apply equally to the November 6 Marsden motion.
2. Denial of Defendant’s Second Motion to Represent Himself
As stated above, after defendant’s fourth Marsden motion was denied, he immediately asked to represent himself, for a continuance and a change of venue. Also as stated above, defendant’s request to represent himself was denied as untimely and because “[i]t is now just a ploy to try and get your attorney relieved[.]” This occurred at the end of the day on November 6. The following morning, defendant made a second motion. The trial court noted that defendant had successfully made a Marsden motion on September 4, had made two unsuccessful motions involving his trial counsel on November 2 and 6, and had unsuccessfully asked to represent himself the day before during voir dire. The court said it was exercising its discretion, at this late stage, to deny defendant’s second request to represent himself, finding, “It appears . . . that [defendant] is attempting to just prolong this matter. . . . [H]e is being represented properly . . . by [defense counsel]. . . . [U]nder People v. Burton . . . the court . . . is preventing . . . defendant from misusing this motion as an unjustifiable delay tactic and obstruction of the . . . administration of justice.”
The court missed defendant’s unsuccessful Marsden motion on September 4.
Defendant acknowledges that because this request was untimely, it was committed to the sound discretion of the trial court. (People v. Valdez (2004) 32 Cal.4th 73, 103 (Valdez).) He asserts that the trial court should have considered the quality of counsel’s representation, defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings and the disruption or delay which might reasonably be expected to flow from granting the motion. (Ibid.) However, the trial court expressly addressed all of these factors. Defendant cites no authority holding that the trial court must go through the pointless exercise of actually asking defendant for his version of each of these factors, rather than rely on the record and its own memory. Defendant had asked for a continuance and change of venue less than 24 hours before making this request. The trial court had no reason to believe that defendant suddenly could or would want to proceed with trial, which was already under way, without a substantial delay. The trial court did not need to ask defendant why he wanted to represent himself—it was obvious.
Unlike People v. Tyner (1977) 76 Cal.App.3d 352, on which defendant relies, the jury was in the process of being chosen and motions in limine had already been held and exhibits had been marked. Moreover, the defendant in Tyner represented that he was ready to proceed immediately (id. at pp. 354-355), which defendant did not do. In People v. Herrera (1980) 104 Cal.App.3d 167, also cited by defendant, although the jury had been empanelled two days before defendant’s request for self-representation, “[t]he court was unable to proceed on the day of trial and continued the matter for two days after the jury was sworn.” (Id. at p. 174.) This was not the case here. Trial was underway.
Defendant’s point, once again brought up in his reply brief so the People have no opportunity to respond, that the prosecutor would not have been opposed to a continuance, misses the mark. First, it would have been up to the trial judge, not the prosecutor, to grant a continuance, and voir dire had already begun. Second, delay is only one of the factors under Valdez. Defendant’s reason for the request, his history of substituting counsel and the quality of his representation are also to be considered and these weighed against granting his request.
3. Admission of Victim’s 911 Call
The victim called 911 and reported that her boyfriend “beat the shit out of her” and kicked her son. She said defendant had taken off “just now[,]” “a few minutes ago.” In response to the dispatcher’s question, she gave defendant’s name and volunteered that he was driving a white Isuzu Rodeo. She was asked if she needed medical aid and she replied “probably, yeah.” She was transferred to the fire department and repeated that her boyfriend had “just beat the shit out of me” and kicked her son. She was asked if defendant was coming back and she said she did not know. In response to a question, she told the fire department dispatcher defendant’s name. She was asked to describe her injuries, which she did and was told the paramedics would be sent to look at her. She was told to stay at her neighbor’s house, from whence she was calling. She was then asked by the first dispatcher, who handled the rest of the call, if defendant had any weapons. She did not respond, but said that defendant had hit her several times with his hands and kicked her in the head and kicked her son, in the presence of both her sons. She was asked if she had both of them with her. She said defendant beat them, also. She was asked if they needed medical attention. She said one did. She was told the paramedics would look at both of her sons. She described her injuries and was asked again if defendant would come back and replied she did not know. She cried throughout the conversation.
Before trial began, the People moved to have admitted into evidence the victim’s 911 call as a spontaneous statement. Defendant objected on the basis, inter alia, that the statement was testimonial in nature and therefore inadmissible under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] because the victim could not be located and cross examined at trial. The trial court concluded that under Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266] (Davis), the statement was not testimonial because the victim was calling for medical and police assistance.
In Davis, the victim was on the phone with a 911 operator while the defendant was assaulting her and after he took off running. (Davis, supra, 541 U.S. at p. 817.) Part of the victim’s statement was in response to questions asked by the operator. As here, the victim failed to appear for trial and the tape of her 911 call was introduced into evidence. The Supreme Court held, “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. [¶] . . . [¶] Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [¶] . . . [¶] A 911 call . . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance. [¶] . . . [The victim here] was speaking about events as they were actually happening, rather than ‘describ[ing] past events[].’ [Citation.] . . . [A]ny reasonable listener would recognize that [the victim] . . . was facing an ongoing emergency. . . . [The victim’s] call was plainly a call to help against a bona fide physical threat. [T]he nature of what was asked and answered . . ., viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past. That is true even of the operator’s effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. [Citation.] . . . [The victim’s] frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe. [¶] We conclude from all of this that the circumstances of [the victim’s] interrogation objectively indicated its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not ‘a weaker substitute for live testimony’ at trial [citations] . . . . (Davis, supra, 541 U.S. at pp. 821, 827-828.)
Defendant here contends that admission of the 911 tape was error requiring reversal of his conviction, distinguishing the instant facts from those in Davis. Contrary to defendant’s claim, the victim was, indeed, facing an ongoing emergency, i.e., she had just gotten the “shit” beat out of her and needed medical attention, as did one of her sons. Moreover, she did not know whether defendant would return, which represented a bona fide physical threat as did the one in Davis.
In a letter to the victim written from jail, defendant admitted hitting her “four or five times [‘]til[] [he] landed one that [he] knew did damage.” During a phone conversation with the victim, when defendant discovered that the police had taken pictures of her injuries, he said, “ . . . [I]f they got pictures of that, I’m fucked. [¶] Yeah, I’m gonna [get] fucked on that deal. . . . [T]hat’s got me. [¶] I think I’m gonna go up for a while.” On the stand, defendant admitted hitting the victim three or four times. The issue in this case was not whether defendant hit the victim causing her injuries—the issue was what led up to it. According to some of the victim’s statements, it was an unprovoked attack. According to others, and the defendant’s trial testimony, the victim began the confrontation and provoked the assault by poking him in the eye. The jury heard the tape of a phone call between the victim and defendant while the latter was in jail, during which defendant appeared to be feeding false information for the victim to give police. The victim, who was awaiting sentencing in another case in December and had two sons in school, disappeared one week after the preliminary hearing, despite having a bench warrant issued for her arrest. Other than the absence in the 911 call of the victim admitting that it was her fault defendant beat her, the tape was irrelevant to the real issue in the case. Thus, admission of the tape, even if error, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 25 [87 S.Ct. 824])
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., McKINSTER J.