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People v. Jones

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 24, 2012
G044169 (Cal. Ct. App. Jan. 24, 2012)

Opinion

G044169

01-24-2012

THE PEOPLE, Plaintiff and Respondent, v. SEAN CORNELL JONES, Defendant and Appellant.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 09CF2923)


OPINION

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

I.


INTRODUCTION

A jury convicted Sean Cornell Jones of one count each of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)), first degree robbery (id., §§ 211, 212.5, subd. (a)), and attempted murder (id., §§ 664, subd. (a), 187, subd. (a)) and made true findings on various special circumstance allegations. The trial court sentenced Jones to a determinate term of 27 years.

Jones challenges the judgment solely on the ground the trial court erred by denying his motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) seeking substitution of appointed counsel. In the Marsden motion, made after the jury reached its verdict, but before sentencing, Jones argued his trial counsel would not investigate potential new evidence to support a motion for a new trial. The potential new evidence, Jones asserted, was a second, separate audio recording of his interview by the police, during which he made incriminating statements. The first audiotape was of poor quality, and Jones believed this second tape, unlike the first, would reveal he had asked for an attorney during the interview, thereby making his incriminating statements involuntary and subject to suppression.

In this appeal, Jones argues the trial court failed to determine whether his trial counsel had investigated his claim of a second audiotape, and counsel's statements at the Marsden hearing suggested he had failed to investigate the existence of the second tape based on the erroneous assumption that tape would not assist in the defense. We conclude the trial court made the correct inquiries and determinations and did not abuse its discretion by denying the Marsden_motion. Accordingly, we affirm.

II.


FACTS

We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.) Due to the limited issues raised on appeal, an abbreviated set of facts is presented.

The victim, L.A. Olson, wanted to sell a pound of marijuana. Eventually, he was placed in contact with Joshua Phillips, who expressed an interest in buying it. On the morning of November 28, 2007, Phillips appeared at Olson's apartment with Jones, who served as a "runner" for Phillips. Jones came armed with a loaded .22-caliber revolver. Outside of the apartment, Phillips and Jones sampled some of the marijuana. They walked back inside the apartment, and Phillips and Olson negotiated the price in the kitchen. They did not reach an agreement, but walked upstairs with Jones to Olson's bedroom, where the marijuana was kept.

Negotiations continued in the bedroom. The conversation became heated as both Phillips and Olson grew frustrated over the inability to reach a deal. To show he was serious about buying the marijuana, Phillips showed Olson the cash. In response, Olson produced a large bag of marijuana.

Phillips grabbed the bag of marijuana and walked toward the bedroom door. At that moment, Jones pointed his revolver at Olson's head and said, "[d]on't fucking move." As Olson took a step toward Jones, he shot Olson in the head.

Phillips and Jones ran out of the apartment and drove off in Phillips's sport utility vehicle. Olson was able to dial 911 and give the operator a partial license plate number for Phillips's vehicle. Olson was taken to the hospital for treatment and survived. While making their getaway, Phillips pulled over so that Jones could throw the revolver into a storm drain. The revolver later was recovered by a local resident.

Later that day, police officers searched the residence shared by Phillips and Jones and found a pound of marijuana and $3,000 in cash.

Jones was arrested the day after the shooting and was interviewed by City of Orange Police Sergeant Robert Miller at the police station. Jones said he was a runner for Phillips and for Kyle Belford, and that Belford had given him the revolver. Jones claimed he went to Olson's apartment by himself to tell Phillips he did not want to be a runner any longer and to return the revolver. When Jones removed the revolver, Olson pushed him twice. On the second push, Jones's shoulder struck a doorframe, causing the revolver to discharge accidentally. Jones placed the revolver in the pocket of his sweat pants and ran out of the apartment and down the street in a panic, only later realizing the revolver had fallen out.

Jones testified at trial that police sergeant Raymond Winick was also present during the entire interview at the police station on November 29, 2007 but did not ask any questions. Jones testified that Miller made no threats or promises of leniency during the interview. Jones conceded he told many lies during the police interview.

III.


THE MARSDEN MOTION AND HEARINGS

After the jury reached its verdict, but before sentencing, Jones brought a petition seeking to terminate the services of his appointed trial counsel. The trial court treated the petition as a Marsden motion.

As further explicated at the Marsden hearings, Jones's primary contention was that a second recording of the police interview on November 29, 2007 had been made by Winick. The recording that was transcribed and produced at trial was of poor quality and inaudible in parts. Jones contended this second recording would be of better quality and would reveal that he had requested counsel during the police interview and that he had been made promises to be induced to talk, thereby making inadmissible his incriminating statements made during the interview. Before trial, the court had denied Jones's motion to suppress statements made during the police interview on the ground he had not invoked his right to counsel during the police interview. Jones contended the existence of the second audiotape constituted new evidence to support a motion for a new trial, but his trial counsel refused to investigate the existence of the tape and bring a new trial motion.

A. The Pretrial Evidence Code Section 402 Hearings

1. December 2, 2009 Hearing

First, we examine Jones's pretrial motions to suppress and the hearings under Evidence Code section 402. The trial court conducted a section 402 hearing on Jones's motion to exclude various statements he made during the police interview on November 29, 2007.

Miller, who had interviewed Jones, testified the interview was audio-recorded using a cassette recording system that was about 19 years old. The recording system was poor and the interview room was not insulated for an audio recording. According to Miller, the recording system was operated "by another operator at that time at the police department." Miller gave no further details about who operated the recording system.

Miller testified he advised Jones of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) at the outset of the interview, and Jones agreed to speak. Miller testified he made no threats or promises to get Jones to speak.

A portion of the recording of the interview was played. In one passage, Jones said, "I'm not going to . . . ," and then the recording became inaudible. Miller testified that Jones stated he did not want to say anything that would get him into trouble. Miller testified he did not recall that Jones said he did not want to talk anymore. Jones did not state he wanted an attorney and did not give any indication he wanted to stop talking.

At the August 20, 2010 Marsden hearing, Jones's counsel represented that after the December 2, 2009 Evidence Code section 402 hearing, the case against Jones was dismissed and later refiled.

2. March 18, 2010 Hearing

In March 2010, Jones made another motion to suppress his statements made during the police interview on November 29, 2007. The motion papers do not mention Winick but do cite directly to the interview transcript.

Another Evidence Code section 402 hearing was conducted on March 18, 2010. Miller again testified he interviewed Jones on November 29, 2007 and the interview was recorded by audiotape. He testified the interview room had a microphone that was mounted in the wall and connected to a recording room, he did not have an audio-recording device on his person, and he did not use a microcassette recorder. He did not inform Jones the interview was being recorded. Miller testified he and Jones were the only persons in the interview room.

Miller testified he advised Jones of his rights under Miranda. Miller made no threats or promises to get Jones to talk, and Jones never asked for an attorney or indicated he wanted to stop the interview. At about 12 minutes into the interview, and again about 19 minutes later, Jones stated he did not want to say anything that would get him into trouble. Jones did not say he did not want to talk anymore.

At the end of the hearing, the court denied the motion to suppress. The court found that Jones had been properly advised of his Miranda rights and that he did not invoke his right to end the interview.

B. Trial

At trial, Miller testified the interview of Jones on November 29, 2007 was recorded by audiotape.

Winick testified he interviewed Olson while he was in the hospital and recorded the interview using a handheld digital recorder. Winick was not asked whether he was present during Jones's interview on November 29, 2007.

C. Marsden Hearings

1. July 23, 2010 Hearing

On July 23, 2010, the trial court held a hearing on the Marsden motion. At the hearing, Jones contended his attorney had not provided him with all discovery and was not returning telephone calls regarding grounds for a new trial motion. Jones had not spoken with his attorney since the last court appearance, which was in the previous month. Jones's attorney responded by saying he did not believe any of the grounds identified by Jones for a new trial motion had merit.

The trial court continued the hearing to August 20, 2010 to give Jones the opportunity to retain counsel, and ordered defense counsel to speak with him in person in the meantime.

2. August 20, 2010 Hearing

At the August 20, 2010 Marsden hearing, Jones stated his attorney had met with him but did not take notes. Jones also stated that when he told his attorney that "his demeanor was giving me the impression that he washed his hands of the situation and that he was done with it," his attorney responded, "I am."

Jones asserted his attorney had not investigated whether new evidence existed to support a motion for a new trial. When the court asked what Jones believed to be the new evidence, he responded: "During the [Evidence Code section] 402 motion on the Miranda hearing, . . . Sergeant Miller . . . testified that the way my interview was recorded was through a microphone in the wall behind him. Well, in a prior [section] 402 hearing, when my case was dismissed and refiled, his testimony was there w[ere] two detectives in the room and another detective was operating the tape recorder. So if . . . he said . . . in the hearing that we had here back in March, that it was just me and him [sic] in the room and the . . . interview was recorded on a microphone in the wall behind him.

That means that my interview would have been recorded on two separate audio—by two separate audios, the mini tape recorder and the microphone in the wall. We only got one set of audiotape, and I don't know if it's from the audio recorder that the other detective had or from the microphone that's in the wall, and we don't know even if in fact there w[ere] two tapes or if . . . he's telling an outright lie. And [my attorney] doesn't even want to check, look into it, ask, find out what's going on, and that bothers me. And I feel like he at least should look into it. [¶] I understand that he has an ethical duty not to file frivolous motions. I'm not asking him to file frivolous motions. But I'm bringing it to his attention, because if in fact there w[ere] two tapes, and they destroyed another tape, or whatever the case may be, then there's a problem there, and that's my concern. [¶] I expressed that to him before we even went to trial and I asked him to—I told him— I asked what he thought about filing a Harvey-Madden motion so that we can subpoena the original tapes for our own independent analysis, because there were some things that were said in the interview that were not on the tape because of poor quality, and he said, no, we're not doing that. I also asked about a Pitchess motion prior to the hearing. He said, no, he wasn't doing that either. [¶] So I mean at this point—and, you know, it's not the first time that we've bumped heads, but by him saying that he's done and he's not investigating the new evidence."

The court responded by saying, "it doesn't sound like new evidence" because "it was known before the trial began" and "you just disagreed with [your attorney] during the . . . trial about how to use that information." Jones claimed he did not know there were two recording devices during the police interview until the Evidence Code section 402 hearing. Jones replied, "[c]orrect" after the court stated, "the other stuff appears to be things you feel should have been done before the trial commenced in the form of additional motions or requests."

When the trial court stated it was trying to understand the problem with defense counsel, Jones replied: "Well, my concern is the tape. . . . [I]f the tapes were altered or destroyed intentionally to cover up the fact—because I know what I said during that interview. I did ask for an attorney. And the detectives told me that the courts and the D.A. are willing to work with people . . . who cooperate with the investigation, and that's when I gave the statement that I gave. So that would make my statement involuntary, and I told him that. I told my attorney that. He knows that. I know what I said during the interview. [¶] I also asked pretrial. I told him I wanted to hear the tapes myself, and he didn't get a court or none of that—or any of that. Now I'm at this crossroads where . . . now I find out that there's possibly . . . another set of audio from my interview and we haven't seen it. We didn't even know it existed until the [Evidence Code section] 402 hearing. At that point it was already too late."

The trial court asked defense counsel to respond. Counsel stated he had met with Jones and discussed grounds for a new trial motion, including "the missing tapes," and told him, "there's just no evidence, no foundation and nothing to support at least what I believe would be the basis for his motion." Counsel stated he had explained to Jones that even if there were a second tape, the outcome at trial would not change because "ultimately the trial rested upon what happened in that room between himself and Mr. Olson." Counsel understood that if Jones had been given promises to induce him to talk, the argument that his statements were involuntary would be stronger.

The trial court asked Jones what evidence he had of a second audio recording, and he replied: "I believe back in 2009, we had a[n Evidence Code section] 402 hearing on the statements, a Miranda hearing. And during that hearing . . . , in my transcript of . . . my interview with Sergeant Miller, . . . when he testified here on March 18, he said that just me and him [sic] were present in the room and that the . . . interview was recorded through the microphone in the wall. [¶] Well, that's not true because in my statement in the transcript, I have a conversation with the other detective when detective Miller—when sergeant Miller leaves the room, I have a conversation with the other detective. The other detective had a cell phone conversation between his wife and kids and we had a conversation of how old his kids were and how many kids he had, or something along those lines. So that right there shows . . . the particular officer that operated the tape recorder in his pocket. [¶] That [section 402] hearing was held on December 2."

Later, after a discussion about discovery Jones had received, the trial court asked whether Jones had used the time offered by the continuance of the Marsden hearing to contact potential replacement counsel. Jones replied he had contacted an attorney's office and the Legal Aid Society, and was contemplating rehiring the private attorney he initially retained to represent him. The private attorney charged a $250 fee for consultation in jail. Jones stated his father was willing if necessary to pay the consultation fee and had the financial wherewithal to pay for retained counsel, but his father was ill and "doesn't really know a lot of the facts about the situation and the tapes."

Jones then revealed he had been in contact with someone who had done "a lot of stuff for him and who would have the audiotape of the police interview checked for tampering. The court responded, "[s]ounds to me like you have a lot of hopes and dreams but no real plans."

After announcing it was time to make some decisions, the court asked: "So what would you like me to do? I can give you a brief continuance, but that's it. When we come back, you either have a new lawyer or you're self-represented. That's your call. Would you like to do that, or would you like to be sentenced and just get your appeal going and see whether or not there was error?" Jones asked for a continuance, and the court gave him until September 3, 2010, to find new counsel or decide whether to be self-represented. The court stated, "I'm giving you the additional time to get private counsel, but I'm telling you now I will not substitute one public lawyer for another one."

The court explained that if on September 3, Jones appeared and announced he had not retained counsel and did not want to represent himself, then the court would sentence him on that day. If Jones chose to represent himself, he would be given a couple of weeks to prepare a new trial motion.

In concluding, the court ruled: "The Marsden [motion] is denied. As I've said, he is not getting one public lawyer for another. I'm extending the courtesy of a second continuance for the purpose of him deciding whether or not he wants to go self-represented, whether or not he can still retain private counsel."

Jones was sentenced on September 3, 2010 and, on the same day, filed a notice of appeal.

IV.


THE TRIAL COURT DID NOT ERR BY DENYING JONES'S

MARSDEN MOTION.

"When a defendant seeks discharge of his appointed counsel on the basis of inadequate representation by making what is commonly referred to as a Marsden motion, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel's inadequacy. [Citations.] '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.]" (People v. Cole (2004) 33 Cal.4th 1158, 1190.)

We review denial of a Marsden motion under the abuse of discretion standard. (People v. Cole, supra, 33 Cal.4th at p. 1190.) "'[A]ppellate courts will not find an abuse of that 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.)

Jones argues the trial court erred by denying his Marsden motion because (1) the court failed to determine whether his trial counsel investigated his claim of a second audiotape and whether Winick was present during the police interview, and (2) counsel's statements at the Marsden hearing suggested counsel had failed to investigate the existence of the second tape based on the erroneous assumption that tape could not assist in the defense.

The trial court conducted a thorough inquiry into whether Jones's trial counsel had investigated the claim of a second audiotape; indeed, we note, the trial court went to great lengths to address Jones's concerns and to provide a fair Marsden hearing. "'[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.'" (People v. Valdez (2004) 32 Cal.4th 73, 96.)

At the first Marsden hearing, the trial court questioned Jones to understand the nature of his claim of a breakdown in his relationship with defense counsel. When the court learned Jones had not met with counsel for several months, the court ordered counsel to meet in person with Jones. The court continued the Marsden hearing and postponed sentencing for that purpose and to give Jones the opportunity to retain counsel.

At the second Marsden hearing, when Jones stated his attorney would not investigate whether there was new evidence to support a motion for a new trial, the trial court asked Jones to identify the new evidence. Jones stated that at the December 2009 Evidence Code section 402 hearing, Miller testified he and another police officer were in the interview room and the other officer was operating the tape recorder. Jones asserted, "[t]hat means that my interview would have been recorded . . . by two separate audios, the mini tape recorder and the microphone in the wall." The trial court responded first by stating the evidence identified by Jones did not appear to be new, and then by asking defense counsel to respond. Defense counsel confirmed he had met in person with Jones and had discussed grounds for a new trial motion, but, counsel stated, there was no evidence to support such a motion.

Defense counsel's conclusion there was no evidence to support a new trial motion found support in the testimony at the Evidence Code section 402 hearings. During the December 2, 2009 section 402 hearing, Miller testified the interview was audio-recorded using a 19-year-old cassette recording system that was operated "by another operator at that time at the police department." Miller did not testify the interview was being recorded by two separate recording systems. During the March 18, 2010 section 402 hearing, Miller testified the interview was recorded by an audiotape recording system and the interview room had a microphone that was mounted in the wall and connected to a recording room. Miller did not have an audio-recording device on his person and did not use any kind of microcassette recorder. Miller's prior testimony that the recording system was operated by "another operator" apparently referred to someone in the recording room.

The evidence that Winick was present during the police interview was Jones's trial testimony. Even assuming Jones was correct in this testimony, there was no evidence Winick operated a second audio-recording system during the interview. In believing Winick had a small tape recorder in his pocket, Jones might have been thinking of testimony at trial that Winick used a handheld recording device when interviewing Olson in his hospital room.

The second Marsden hearing showed the breakdown in the relationship between Jones and his trial counsel amounted to a disagreement over whether grounds existed to investigate and bring a motion for a new trial based on newly discovered evidence. "'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.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an "irreconcilable conflict."'" (People v. Valdez, supra, 32 Cal.4th at p. 95.) When a defendant chooses to be represented by counsel, that counsel can make all but a few fundamental decisions for the defendant. (Id. at p. 96.) Jones's trial counsel made the tactical decision not to make a motion for a new trial. Counsel's conclusion that grounds for a new trial did not exist was supported by Miller's testimony at the two Evidence Code section 402 hearings.

The trial court made the proper inquiries and determinations at the Marsden hearings. The trial court did not err in denying Jones's Marsden motion.

V.


DISPOSITION

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.


Summaries of

People v. Jones

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 24, 2012
G044169 (Cal. Ct. App. Jan. 24, 2012)
Case details for

People v. Jones

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SEAN CORNELL JONES, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 24, 2012

Citations

G044169 (Cal. Ct. App. Jan. 24, 2012)