Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVI023511 John M. Tomberlin, Judge.
Lynelle K. Hee, 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, and Peter Quon, Jr., Angela M. Borzachillo and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
The victim in this case was sitting in his car, in the parking lot of an apartment complex, when he was shot in the mouth and killed. A resident saw three men run from the scene.
Witnesses James Quintons and Daveon Pearson admitted to the police that they were two of these three men; they identified defendant as the third. They explained that they were at the complex to buy marijuana when they saw defendant and the victim sitting in the victim’s car. As they approached the car, defendant suddenly shot the victim. They panicked and ran; defendant ran behind them. At trial, Quintons recanted his statements to the police, but Pearson largely adhered to his.
There were some hints the third man might have been not defendant, but defendant’s half brother, Roland; or alternatively, that Roland might have supplied defendant with the gun. Both Quintons and Pearson were acquainted with defendant, but they were closer to Roland. The evidence of motive was that the victim had made some kind of unwelcome sexual advances to defendant’s and Roland’s 12-year-old half sister; this motive would have applied equally to Roland. Also, Roland had the combination to the safe in which the gun was kept; defendant supposedly did not.
Defendant and Roland were jointly charged with murder. (Pen. Code, § 187, subd. (a).) As an enhancement, it was alleged that defendant intentionally and personally discharged a firearm, causing death. (Pen. Code, § 12022.53, subd. (d).) Roland’s case was severed before trial. A jury found defendant guilty of second degree murder. It also found the enhancement true. Defendant was sentenced to a total of 40 years to life in prison.
In this appeal, defendant contends:
Defendant has also filed a related petition for habeas corpus. We ordered that it be considered with (but not consolidated with) this appeal. We will resolve the petition by separate order.
1. The trial court erred by excluding two hearsay statements in which Roland admitted being the shooter.
2. Defendant’s trial counsel rendered constitutionally ineffective assistance by not trying to exclude a hearsay statement in which Roland identified defendant as the shooter.
3. The trial court erred by failing to give accomplice testimony instructions because there was sufficient evidence that Quintons, Pearson, and Roland were accomplices.
4. The trial court erred by failing to hold a hearing on defendant’s posttrial Marsden motion.
A Marsden motion is a motion to discharge existing appointed counsel, based on ineffective assistance, and to appoint new counsel. (People v. Marsden (1970) 2 Cal.3d 118.)
We agree that the trial court erred by failing to hold a Marsden hearing. Otherwise, however, we find no error. Accordingly, we will reverse with directions to hold a new hearing on defendant’s Marsden motion; if the trial court denies the motion, however, it must reinstate the judgment.
I
FACTUAL BACKGROUND
A. The Apartment Resident’s Account.
Albert Abilez lived in an apartment complex in Hesperia. On January 29, 2006, shortly before sunset, he was inside his apartment when he heard “a loud bang.”
Looking out his window, he saw four African-American men in the parking lot. The biggest man was walking slowly west, toward the main gate of the complex. At first, the smallest man, who was wearing a white T-shirt, was walking with him. This man, however, then turned around; he went back to a parked white Lincoln Town Car and reached into the driver’s side window.
The other two men ran north to a cinder block wall. They yelled to the smallest man; one of them made a “hurry up... gesture....” The smallest man then ran to them. All three “jumped the wall and disappeared.”
B. The Crime Scene.
Police officers arrived at the apartment complex about 6:00 p.m. They found the body of Kenneth Mayberry lying on a grassy island next to the parking lot. He had been shot once, in the mouth. A nine-millimeter bullet was lodged in the back of his neck. Gunpowder residue around the wound indicated that the shot had been fired from “a matter of inches” away.
Blood tests revealed that the victim had been using methamphetamine. Some apparent methamphetamine was found in his pants pocket.
A white Lincoln Town Car was parked in the parking lot. Under the driver’s seat, the police found one fired nine-millimeter bullet casing. Blood patterns indicated that the victim had been shot while sitting in the driver’s seat of the car. He had gotten out; he had gone west through the parking lot until he ran into a parked truck and fell.
Shoeprints, in three different patterns, were found inside the cinder block wall, as well as outside it, going down a dirt road.
C. The Investigation.
On January 31, 2006, the police interviewed the victim’s wife and son. His wife told them that, when she last talked to the victim, he said he was at the home of one “Roland” (or “Ronald”). His son told them that Roland lived on Riverside Street.
On February 7, 2006, the police went to the Riverside Street address, which was the home of Roland. Defendant, who was Roland’s half brother, was also living there. The other inhabitants included Rosalyn, who was Roland’s mother (but not defendant’s), and R, who was Rosalyn’s daughter and the half sister of both Roland and defendant.
In the kitchen, the police found a shoeprint that was similar to one found at the cinder block wall. In a safe, they found a nine-millimeter semiautomatic handgun. Tests showed that this gun had fired the bullet casing found in the victim’s car.
Defendant was at the home when the police arrived. That same day, however, he left and went to Florida, leaving behind his four-year-old son and all of his belongings.
D. R.’s Testimony.
R. testified that the victim had come to the house a couple of times to see defendant and Roland. On one such occasion, when she was 12 (i.e., in 2005 or 2006), he “gave [her] a hug. He touched [her] butt and [her] lower back, and he went up and then when he left he said stay sweet.” She felt “violated.” She told her mother. A few days later, when the victim was at the house again, defendant asked her if she wanted the victim to apologize. She said she did. The victim accordingly apologized.
R. was not asked to clarify what “he went up” meant. It could be taken to mean that he moved his hands up her back. However, it could also be taken to mean that he got an erection.
According to her mother, however, R. told Roland and defendant; it was Roland who told the mother.
E. Rosalyn’s Testimony.
Rosalyn testified that she kept a nine-millimeter gun in a safe. Whenever she went to work, she took it out and gave it to Roland for protection, because someone had shot at the house. Everyone in the house knew it was there, and everyone except defendant knew the combination to the safe.
Rosalyn worked as a cashier at a minimart at a gas station. On the night of the shooting, defendant and Roland came into the minimart. While Roland was outside, pumping gas, defendant pointed his fingers, in the shape of a gun, at his head and said, “[I]t’s done.” She knew that he was referring to Mayberry. She started crying; she kept saying, “[P]lease tell me [you] didn’t do that[.]”
Rosalyn then went outside and said to Roland, “[P]lease tell me he didn’t do that.” Roland just said, “[Y]es, he did, mama.”
F. Quintons’s Account.
1. Quintons’s statements to the police.
Roland’s circle of friends included both James Quintons and Daveon Pearson.
On February 7, 2006, the police interviewed Quintons at the police station. He did not appear to be under the influence of drugs or alcohol.
Initially, Quintons said he had already left the apartment complex and was going home when he heard a shot. The police told him, however, that they “had witnesses that were telling [them] that he was there.” They also brought Roland into the interview room. Roland told Quintons “that he had told the truth, and it was okay [for Quintons] to tell the truth.” Roland then left.
Quintons did not change his story immediately. The police, however, repeated that they knew he had been at the scene, adding that they also knew he was not the shooter. They told him “he was either a witness in the wrong place at the wrong time or he was a co-conspirator....”
Quintons then said he was just leaving the apartment complex when he saw the victim and defendant in the victim’s car. The victim offered Quintons a ride home. Quintons waited at the rear passenger door while the victim cleared out the back seat. A fourth Black male (i.e., Pearson) walked up to the car.
At that point, Quintons heard (but did not see) a shot fired inside the car. The victim screamed and ran away from the car. Quintons and Pearson jumped the wall and fled. At one point, defendant caught up with them and said, “[T]hey weren’t there.” Quintons went to Pearson’s house.
2. Quintons’s testimony at trial.
At trial, Quintons denied knowing anything about the shooting. He denied even knowing Pearson. He admitted going to the apartment complex “once or twice” to buy marijuana.
At the time of the interview, Quintons testified, he was young and under the influence of cocaine and marijuana. He changed his story only because the police “were insisting that my initial statement was untrue, and if I didn’t tell them what they wanted to hear I was going to be prosecuted for [murder].”
G. Pearson’s Account.
1. Pearson’s statements to the police.
When the police first interviewed Pearson, he denied knowing anything about the shooting. On February 22, 2006, after talking to Roland and Quintons, the police interviewed Pearson again. This time, he said he and Quintons went to the apartment complex to buy some marijuana. They saw the victim (whom Pearson did not know) in the driver’s seat and defendant in the passenger seat of the car. As they were walking up to the car, they heard a shot. The victim got out of the car and ran.
Pearson “panicked.” He and Quintons jumped over the wall and ran. Defendant tried to run with them, but Pearson stopped and let him go by, because he did not want to be involved. Defendant was wearing a white T-shirt. It was “covered in blood.” Pearson noticed a semiautomatic handgun in defendant’s rear waistband. Defendant and Quintons turned, but Pearson kept going straight and went home.
Later that night, defendant came to Pearson’s home. Defendant said, “I had to do it.” Pearson told him, “I don’t even wanna know....”
2. Pearson’s testimony at trial.
At trial, Pearson’s testimony was basically the same as his statements to the police, with the following exceptions.
Pearson saw a second person in the car with the victim, but he could not see the second person’s face.
When defendant caught up with Pearson, he was wearing a black T-shirt. There were “little wet spots” on it, but Pearson could not tell whether this was blood.
Later that night, when defendant came over to his house, Pearson testified, “[H]e was trying to tell me something, but I... cut him off....”
Pearson testified that he lied to the police — particularly about actually seeing defendant in the car — because they told him he was either a witness or he was going to jail.
II
THE EXCLUSION OF ROLAND’S HEARSAY STATEMENTS
THAT HE WAS THE SHOOTER
Defendant contends that the trial court erred by excluding two confessions by Roland.
A. Additional Factual and Procedural Background.
On January 19, 2009, during a pretrial hearing, Roland asked if he could say something. He then volunteered: “I would just like to say I apologize for everything I have done, and I am sorry, but I would like to say on the record that I killed Kevin Mayberry.”
On March 6, 2009, Roland wrote a letter to defendant saying: “Sorry for bring[ing] you into this. I know you didn’t have nothing to do with that shit with Kevin. But the police made me say you did it.... I shouldn’t of brong [sic] none of the family into this but he tryed [sic] to rape [R.] that’s our little sister man. Then he lied in my face like I’m stupid that pissed me the fuck off.... I kill Bumper Jack I shot him in the face. My bad for all of this.” (Capitalization omitted.)
Defense counsel sought to call Roland to testify at trial. Roland, however, invoked his Fifth Amendment privilege. Defense counsel therefore also sought an in limine ruling on the admissibility of Roland’s two confessions. He argued that, although hearsay, they were within the exception for a declaration against interest. (Evid. Code, § 1230.)
The prosecutor responded that the confessions were insufficiently trustworthy. She pointed out that they conflicted with Roland’s statements to the police, in which he had given the following account: He was upset because the victim had molested his sister. On the day of the shooting, the victim was at his (Roland’s) house. Roland got “his mother’s gun, ” intending to shoot the victim; however, “he decided he couldn’t go through with it....” Defendant told Roland, “[D]on’t worry. I got your back.” Roland gave defendant the gun. Defendant then left with the victim, in the victim’s white Lincoln; 20 or 30 minutes later, defendant came back and said he had shot the victim. Defense counsel agreed that this was an accurate summary of Roland’s statements to the police.
The trial court excluded Roland’s confessions. It explained: “... I don’t believe [Roland]. I find no indicia of trustworthiness.” “I believe that it’s just as likely that he is saying this to cover for... his brother, since he knows he’s in trouble already.”
B. Analysis.
A hearsay statement is admissible under the exception for a declaration against interest “if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” (Evid. Code, § 1230.)
“‘The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 584.)
“Thus, even when a hearsay statement runs generally against the declarant’s penal interest..., the statement may, in light of circumstances, lack sufficient indicia of trustworthiness to qualify for admission. [Citations.]” (People v. Duarte (2000) 24 Cal.4th 603, 614.)
Roland was unavailable as a witness because he had invoked his Fifth Amendment rights. (People v. Duarte, supra, 24 Cal.4th at pp. 609-610.) “A statement confessing one’s guilt to a serious crime is, on its face, against one’s penal interest. [Citation.]” (Luna v. Cambra (9th Cir. 2002) 306 F.3d 954, 963 [applying California law], mandate recalled and opinion amended by 311 F.3d 928.) The trial court ruled, however, that Roland’s confessions were not sufficiently trustworthy. “A reviewing court may overturn the trial court’s finding regarding trustworthiness only if there is an abuse of discretion. [Citation.]” (People v. Frierson (1991) 53 Cal.3d 730, 745.)
As the People note, Geier is practically on point here. In Geier, there was evidence that Jennifer Dean was having an affair with Jeffrey Hunter and hired the defendant to kill her husband. (People v. Geier, supra, 41 Cal.4th at pp. 567-570.) Dean made three statements to the police. In the first, she said she knew nothing about her husband’s death. In the second, she suggested that the defendant and Hunter had killed her husband for his insurance money. In the third, which was videotaped, she said she killed her husband herself because he had hurt their daughter. At trial, she asserted her Fifth Amendment right not to testify. The defendant sought to admit her third, videotaped statement under the declaration against interest exception, but the trial court excluded it as untrustworthy. (Id. at p. 583.)
The Supreme Court held: “The trial court did not abuse its discretion in excluding the videotape of the third statement. As the court observed, the third statement was utterly inconsistent with Dean’s initial statement, in which she told police she knew nothing of her husband’s death, and also inconsistent with her subsequent statement blaming defendant and Hunter for her husband’s murder. Thus, on their face, two of her three statements were absolutely untruthful, rendering the reliability of any of the statements questionable. The fact that Dean confessed to killing her husband in the third statement did not, by itself, establish that the third statement was any more reliable than the other two. Dean’s admission was accompanied by an explanation that she killed her husband because she had just quarreled with him and that he had hurt their daughter. Dean may have believed that this explanation minimized her culpability or excused her conduct altogether. Moreover, Dean was having an affair with Hunter and her third statement, taking the blame for the murder with an excuse, may have been her attempt to protect him and, by extension, his confederate, defendant.” (People v. Geier, supra, 41 Cal.4th at p. 585.)
Here, much as in Geier, Roland had made inconsistent statements, “rendering the reliability of any of the statements questionable.” (People v. Geier, supra, 41 Cal.4th at p. 585.) Moreover, Roland’s confessions taking the blame for the murder may have been an attempt to protect defendant, his half brother. (See also People v. Frierson, supra, 53 Cal.3d at p. 745 [“[t]he court could reasonably find [defendant’s friend who confessed to the crime] wanted to aid his friend at little risk to himself, and thus the statement was insufficiently trustworthy”].)
Defendant argues that Geier is distinguishable because there, Dean had not yet been charged with any crime when she made her statements. Even so, she would have realized that confessing to murder could result in prosecution. Indeed, she was ultimately tried for murder, but acquitted. (People v. Geier, supra, 41 Cal.4th at p. 583, fn. 6.)
Defendant also argues that Dean’s confession minimized her culpability. Admittedly, Roland’s confessions were unqualified; he did not try to excuse his conduct. Even so, they did not expose him to significantly greater criminal liability than did his original statement to the police. In that statement, even though he was not the killer, he did aid and abet the killing — he provided the gun to defendant with the evident intent that defendant would use it to kill the victim. An aider and abettor is subject to the same penalty as a perpetrator. Thus, while his confessions were against his penal interest, they were not significantly more against his penal interest than the statement he had already made. On the other hand, they were much more favorable to defendant. This rationally supported an inference that his original statement was true and his confessions false.
We therefore conclude that the trial court did not abuse its discretion by excluding Roland’s confessions.
II
FAILURE TO OBJECT TO ROLAND’S HEARSAY STATEMENT
THAT DEFENDANT WAS THE SHOOTER
Defendant contends that his trial counsel rendered constitutionally ineffective assistance by failing to object to Roland’s hearsay statement that defendant was the shooter and by cross-examining Rosalyn about the statement.
A. Additional Factual and Procedural Background.
As mentioned earlier, on direct, Rosalyn testified that defendant put his hand, in the shape of a gun, up to his head and said, “[I]t’s done.” The prosecutor asked:
“Q What happened next, [Rosalyn]?
“A I just started crying and I kept saying please tell me you didn’t do that, and then I went outside and asked my son, Roland, please tell me he didn’t do that, and Roland said, yeah, mama[, ] he did, and I just walked away and started crying.”
Defense counsel did not object to this statement. To the contrary, he asked Rosalyn about it on cross-examination:
“Q When you went outside, you talked to Roland?
“A Yes.
“Q And Roland said something to the effect that he couldn’t lie or something?
“A No, he just said, mama, yes, he did it. That’s what he said.
“Q He said what? I didn’t quite hear.
“A I asked him please tell me he didn’t do that, and Roland said, ‘[Y]es, he did, mama.’
“Q Now, when you said tell me he didn’t do that, you didn’t specify anything more than that; is that correct?
“A No.
“THE COURT: No that’s not correct or that is correct?
“THE WITNESS: Yes, that is correct.”
B. Analysis.
“... ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]’ [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 391.) “‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’ [Citations.]” (People v. Salcido (2008) 44 Cal.4th 93, 172.)
Here, the prosecutor’s question — “What happened next” — was not objectionable on its face. It did not necessarily call for Roland’s hearsay statement. The appellate record, as usual, does not include the discovery exchanged between the parties, so we have no way of knowing whether defense counsel was even aware of Roland’s hearsay statement. The first part of Rosalyn’s response — “I just started crying and I kept saying please tell me you didn’t do that” — shows that her answer, too, could have been unobjectionable. However, she then went on to volunteer Roland’s hearsay statement.
On cross-examination, defense counsel asked, “And Roland said something to the effect that he couldn’t lie or something?” This suggests that the discovery he had received attributed a somewhat different statement to Roland.
Roland’s statement was inadmissible hearsay. The People do not contend otherwise. However, defense counsel had no reason to object until after Rosalyn had already volunteered it. At that point, he faced the difficult tactical decision of objecting to the statement, and thus drawing the jury’s attention to it, or not objecting to it and trying to lessen its effect through cross-examination. Competent counsel could choose the latter course. (See People v. Harris (2008) 43 Cal.4th 1269, 1290 [defense counsel could have decided that objecting would focus the jury’s attention on the detrimental evidence].) Rosalyn had just finished testifying that defendant himself had essentially admitted being the shooter. Thus, Roland was merely confirming defendant’s own admission. Moreover, as defense counsel did in fact bring out on cross, Roland merely confirmed that defendant had done “that”; he did not necessarily understand what Rosalyn was referring to. On this record, defendant cannot show that there could be no satisfactory explanation for defense counsel’s actions.
Defendant argues that all he told Rosalyn was that the victim had been shot, not that he was the shooter. Rosalyn, however, testified that she “kept saying please tell me you didn’t do that....” Defendant’s silence in the face of her pleas was an adoptive admission of her accusation. (Evid. Code, § 1221; People v. Cruz (2008) 44 Cal.4th 636, 672-673.)
Defendant argues that the prosecutor failed to lay a sufficient foundation because the record fails to show what his response was. Rosalyn testified, however, that she kept asking defendant, then went outside to ask Roland. The only reasonable conclusion is that defendant did not respond.
On cross-examination, she specifically testified that defendant did not say anything else “at that point[.]”
Defendant also argues that the jury was not instructed on adoptive admissions. (E.g., Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 357.) He does not raise this, however, as a distinct claim of error. An instruction on adoptive admissions is required only at the defendant’s request. (People v. Carter (2003) 30 Cal.4th 1166, 1197-1198.) Moreover, this is not a case in which there could be any doubt as to whether defendant heard, understood, or had a fair opportunity to reply to the accusation. (Cf. People v. Vindiola (1979) 96 Cal.App.3d 370, 382 [accusation was made in Spanish, but there was no evidence that defendant understood Spanish].) Thus, the failure to give such an instruction was harmless, at worst, or even beneficial to defendant.
Finally, defendant argues that his silence cannot be deemed an adoptive admission because the prosecutor never raised this theory below. That is not entirely true. In his closing argument, he summarized Rosalyn’s testimony, then concluded, “[T]he defendant admitted to her that he did it....” This was so, however, only on an adoptive-admission theory. In any event, the prosecutor was not required to raise this theory in any formal way. The fact that a failure to deny an accusation can effectively be an admission is simply a matter of common sense; it would have been obvious to the jury.
Separately and alternatively, defendant cannot show prejudice. Once again, Rosalyn had just finished testifying to defendant’s own admission. It is unlikely that defendant would have made such an admission if it was not true. Thus, Roland’s confirmation of defendant’s admission was merely cumulative.
We therefore conclude that defense counsel’s handling of Roland’s hearsay statement did not constitute ineffective assistance.
IV
FAILURE TO GIVE ACCOMPLICE INSTRUCTIONS
Defendant contends that the trial court erred by failing to give accomplice testimony instructions with respect to Quintons, Pearson, and Roland.
“If there is evidence that a witness against the defendant is an accomplice, the trial court must give jury instructions defining ‘accomplice.’ [Citations.] It also must instruct that an accomplice’s incriminating testimony must be viewed with caution [citation] and must be corroborated [citations].” (People v. Felton (2004) 122 Cal.App.4th 260, 267-268 [Fourth Dist., Div. Two].)
“‘When the evidence at trial would warrant the jury in concluding that a witness was an accomplice of the defendant in the crime or crimes for which the defendant is on trial, the trial court must instruct the jury to determine if the witness was an accomplice. If the evidence establishes as a matter of law that the witness was an accomplice, the court must so instruct the jury, but whether a witness is an accomplice is a question of fact for the jury in all cases unless “there is no dispute regarding either the facts or the inferences to be drawn therefrom.” [Citation.]’ [Citation.]” (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) If accomplice testimony instructions are warranted at all, they must be given sua sponte. (People v. Box (2000) 23 Cal.4th 1153, 1208, disapproved on other grounds in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.)
An “accomplice, ” for this purpose, is defined as “one who is liable to prosecution for the identical offense charged against the defendant....” (Pen. Code, § 1111; see also People v. Carrington (2009) 47 Cal.4th 145, 190.)
As to Quintons and Pearson, there was no substantial evidence that either of them was guilty of the murder. “[M]ere ‘presence at the scene of a crime or failure to prevent its commission [is not] sufficient to establish aiding and abetting.’ [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 1024.) Defendant points out that they both fled the scene, failed to report the crime, and, at least initially, lied to the police. Again, however, evidence from which consciousness of guilt may be inferred, such as flight, false statements, or suppression of evidence, is not sufficient to establish guilt. (See CALCRIM Nos. 362 [false statements], 371 [suppression and fabrication of evidence], 372 [flight].)
Defendant also relies on the fact that, at times during their investigation, the police treated Quintons and Pearson as suspects. However, the opinion of a police officer that a person is guilty of a crime is not substantive evidence of guilt. (People v. Torres (1995) 33 Cal.App.4th 37, 46-48; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77 [“[a] witness may not express an opinion on a defendant’s guilt”].) Moreover, there was no evidence that the opinion of the police was based on any facts other than those we just discussed — Quintons and Pearson’s presence at the scene of the crime, their flight, and their false statements. “[A]n expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.)
As to Roland, the analysis is somewhat different. We may assume, without deciding, that there was sufficient evidence that Roland was an accomplice. Even if so, the only statement by Roland that was introduced at trial was his hearsay statement to Rosalyn identifying defendant as the shooter. (See part III, ante.) This was not “testimony” for purposes of the duty to give accomplice instructions.
The People argue that Roland’s statement was not “testimony” because he did not testify at trial. That is too simplistic. “The rationale for instructing a jury to view with caution an accomplice’s testimony that incriminates the defendant is the accomplice’s self-interest in shifting blame to the defendant. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 701.) Thus, in this context, “‘“testimony”... includes... all out-of-court statements of accomplices and coconspirators used as substantive evidence of guilt which are made under suspect circumstances. The most obvious suspect circumstances occur when the accomplice has been arrested or is questioned by the police.’ [Citation.] ‘On the other hand, when the out-of-court statements are not given under suspect circumstances, those statements do not qualify as “testimony”....’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 245.)
Here, Roland’s out-of-court statement was not made under suspect circumstances. “[I]t clearly was not made to law enforcement officials in the hope of leniency or immunity. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1133.) He was talking to his own mother. He knew that she had just been talking to defendant, and she could ask defendant to confirm or deny anything he said. Accordingly, there is no reason to suppose that he was engaged in an effort to shift the blame. (See People v. Williams, supra, 16 Cal.4th at p. 246 [declarant’s statements to fellow drug user, while they were using drugs together, were not made under suspect circumstances]; People v. Jeffery (1995) 37 Cal.App.4th 209, 218 [seller’s statements to buyer during drug sale, when seller did not know that buyer was undercover officer, were not made under suspect circumstances].)
Alternatively, at least with respect to Roland’s statement, the claimed error was harmless. “[E]ven where there is a failure to instruct on accomplice testimony, such error is harmless if there is sufficient corroborating evidence in the record. [Citation.] Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citation.]” (People v. Whisenhunt, supra, 44 Cal.4th at p. 215.) As we have already held, Quintons and Pearson were not accomplices, and their testimony was more than adequate to corroborate Roland’s statement.
V
FAILURE TO HOLD A POSTTRIAL MARSDEN HEARING
Defendant contends that the trial court erred by failing to conduct a posttrial Marsden hearing.
A. Additional Factual and Procedural Background.
At the beginning of the sentencing hearing, there was this colloquy:
“[DEFENSE COUNSEL]:... [Defendant] would like to present to the Court a motion for new trial. I have not prepared one because it seems to me that frequently a potential issue in a motion for new trial would have to do with my representation. I have not prepared a motion myself, but he is requesting to have a motion prepared and presented to the Court for new trial.
“THE COURT: I understand. That would have to be an appellate issue in this case. Not having received one in advance, I understand the reason why you indicated that. That’s going to be something that’s preserved on appeal....
“THE DEFENDANT: Your Honor
“THE COURT: No, sir. You are not in a position to address me right now. You’re represented by [defense counsel].
“THE DEFENDANT: Okay.
“[DEFENSE COUNSEL]: If the Court would grant a request, I think another attorney should be appointed from the Conflict Panel to review all of the trial proceedings and prepare that motion, if the Court would like to do that.
“THE COURT: I am not going to do that.... [T]here was no motion that’s been filed. It is not before the Court. It’s time for pronouncement of judgment. Those issues are preserved.
“[DEFENSE COUNSEL]: I explained to [defendant] that the issues that would be raiseable, in my opinion, in a motion for new trial would be issues that would be raised in an appeal, which I intend to file a notice of appeal today.”
B. Analysis.
“‘The law governing a Marsden motion “is well-settled. ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ [Citations.]” [Citation.]’ [Citations.]” (People v. Jackson (2009) 45 Cal.4th 662, 682.)
“When a defendant seeks substitution of appointed counsel..., ‘the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ [Citations.]” (People v. Taylor (2010) 48 Cal.4th 574, 599.)
“[A] defendant is entitled to appointment of substitute counsel upon a proper showing posttrial... as well as pretrial.” (People v. Smith (1993) 6 Cal.4th 684, 692.) “A defendant is entitled to competent representation at all times, including presentation of a new trial motion.... Thus, when a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible... motion for new trial based upon alleged ineffective assistance of counsel.” (Id. at pp. 695-696.)
An appeal is not an adequate substitute for a proper Marsden hearing. “‘[W]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy.’ [Citation.]” (People v. Marsden, supra, 2 Cal.3d at p. 123-124.) Also, “justice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level. In those cases in which counsel was ineffective, this is best determined early.” (People v. Smith, supra, 6 Cal.4th at p. 695.)
“Although a formal motion is not required, the trial court’s duty to conduct an inquiry into the reasons the defendant believes his or her attorney is incompetent arises only when the defendant (or in some instances counsel) provides ‘“at least some clear indication”’ that the defendant wishes to substitute counsel. [Citations.]” (People v. Martinez (2009) 47 Cal.4th 399, 418.) Here, defendant, through his trial counsel, clearly indicated that he wanted new appointed counsel.
Admittedly, trial counsel never said, in so many words, that defendant’s request was based on ineffective assistance of counsel. However, since he was the very counsel whose assistance was in question, he was scarcely in a position to do so. He did the best he could — he observed that defendant wanted to file a new trial motion; that a new trial motion is “frequently” based on ineffective assistance; and that, in his opinion, there were no other grounds for a new trial motion. Beyond this, he could not speak for defendant. If there was any doubt as to whether defendant was claiming ineffective assistance of counsel, the trial court should have let defendant speak for himself. “‘“[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.” [Citation.]’ [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 803.)
As defendant notes, this case closely resembles People v. Mejia (2008) 159 Cal.App.4th 1081. There, at sentencing, trial counsel for one of the defendants, Ismael Mejía, stated, “I believe Mr. Mejía would like to make a motion for a new trial based in large part on my conduct at the trial. And I can’t do that for him.” (Id. at p. 1084.) The appellate court held that this “was adequate to put the trial court here on notice of Ismael’s request for a Marsden hearing.” (Id. at p. 1086.) “[T]he record shows that Ismael instructed his counsel to move for a new trial largely on the basis of his counsel’s performance at trial and that his counsel so informed the trial court.” (Ibid.) “Our Supreme Court emphasizes: ‘The semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right.’ [Citation.]” (Ibid.)
Here, similarly, defense counsel advised the trial court that defendant had instructed him to move for a new trial and that the basis of any such new trial motion would be ineffective assistance. The trial court therefore erred by preventing defendant from explaining the basis of his contention and relating specific instances of inadequate performance.
VI
DISPOSITION
The judgment is reversed, on the following conditions. The trial court is directed to rehear defendant’s Marsden motion; if the Marsden motion is granted, the trial court must appoint new counsel to consider whether to file a motion for new trial, but if the Marsden and/or new trialmotion is denied, or if no new trial motion is filed, the trial court must reinstate the judgment. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1667 [Fourth Dist., Div. Two].)
We concur: RAMIREZ P.J., HOLLENHORST J.