Opinion
A126023, A126883
03-27-2012
THE PEOPLE, Plaintiff and Respondent, v. DANIEL PAUL JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 050717348)
I. INTRODUCTION
Appellant Daniel Paul Jones appeals from the judgment following a jury trial in which he was convicted of second-degree murder. Appellant contends his conviction must be reversed because the trial court erroneously admitted gang-related evidence and violated his Sixth Amendment rights to confrontation and effective assistance of counsel. He also contends his sentencing credits were miscalculated. We will order that the abstract of judgment be modified to correct appellant's pre-sentence custody credits. In all other respects, the judgment is affirmed.
II. FACTUAL AND PROCEDURAL BACKGROUND
In an information dated October 19, 2007, the Contra Costa County District Attorney charged appellant with one count of murder (Pen. Code, § 187 ), and alleged personal use of a deadly weapon (§ 12022, subd. (b)(1)), four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), and three prison priors (§ 667.5, subd. (b)). A codefendant, Michael Matthew Madison, was also charged with the murder.
All further unspecified statutory references are to the Penal Code.
This appeal pertains only to Jones. Thus, we will include and/or discuss information relating to Madison only when it has relevance to the issues raised by Jones.
At trial, the evidence showed that, on April 25, 2005, the victim, Keith Wolf, was stabbed to death at an apartment complex in Antioch. He was 21 years old. His body was found just after 10:30 p.m., lying face down and bloodied on the grass of an interior courtyard at the Runaway Bay Apartments. Wolf had stab wounds to his face, chest, back, and thigh. A wound that penetrated his heart was the cause of death. There were no contusions or bruises on his wrists or upper arms as would be expected if someone held or restrained him during the attack.
At about 10:30 p.m. that evening, Gloria Barton, who lived at the apartment complex, was on her balcony smoking a cigarette. Her balcony looked out toward San Jose Drive and Highway 4. Barton saw a red car that looked like a Camaro or a Trans Am Firebird pull up on San Jose Drive. After a minute or two, four men and a woman got out of the car. At first, the four men stood together in a group. Then one of them began running, heading west before changing direction and darting back toward the apartment complex entrance. The other three men ran after him. The woman remained by the car. Barton saw what she thought were the same four men return to the car after "only a minute or two." The men got into the car and the car drove off.
Shortly thereafter, two people walking through the apartment complex found Wolf's body. "[H]e had been stabbed, and he had blood on him . . . ."
Inside the apartment complex, investigators found a bloody patch of ivy in an open area that looked "trampled and flattened," as if there had been considerable activity on that spot. The prosecution's blood pattern expert opined that the attack on Wolf had taken place there. A trail of blood led away from the ivy patch and further into the complex. It led to two apartment doorways, back into the courtyard, and ended where Wolf fell and died. DNA analysis of blood droplets at multiple points along the trail matched Wolf's DNA.
A separate trail of blood droplets led from the bloody patch of ivy, out of the apartment complex, and to the roadway of San Jose Drive, where it ended. DNA testing of multiple blood droplets in the roadway and curb of San Jose Drive where the trail ended showed a match to appellant.
The night Wolf died, appellant called Steve Buchanan. They had been cellmates at San Quentin in 2001. Appellant told Buchanan that "he had been in a knife fight, and he needed some place to come hang out." When appellant arrived at the hotel where Buchanan was staying, he looked "shaken up." He had blood on his clothes and a towel wrapped around his injured hand, which had been sewn up with fishing line. Appellant told Buchanan that he, Danielle Wells, and Madison had picked up Wolf at a BART station. Appellant said he became "enraged" sitting next to Wolf in the backseat of the car. Wells owned a red Pontiac Firebird. Appellant's DNA was later found on the bumper of that car.
Appellant also told Buchanan that Wolf was a "rat" who had just been released from protective custody at San Quentin. Inmates such as "child molesters, rapists, [and] rats" were housed in protective custody at San Quentin because their lives were in danger. A prison official confirmed that Wolf had been housed in protective custody until his release on parole the day he was killed.
A "rat," or a "snitch," provides assistance to law enforcement.
Buchanan testified that appellant said he planned to rob Wolf of his "gate money." The knife fight happened when they dropped Wolf off on San Jose Drive. Wolf started running, and appellant chased after him, stabbed him, and then "blacked out." Appellant showed Buchanan a bloody knife and said it was the one used to stab Wolf.
"Gate money" is provided by California state prisons to inmates upon their release, as required by law.
Either the night of the murder or the next day, April 26, 2005, Buchanan called Nancy Skinner and asked her to bring a first aid kit to a motel room in Antioch because "his dawg got in a knife fight." Skinner said that, when she arrived on the morning of April 26, appellant was in the motel room and was bleeding from "a really bad cut on the back of his hand." His clothes and shoes were bloody; his shirt was covered in blood. Appellant told her that he cut his hand during a knife fight with a "rat" in the back seat of a car. Appellant bled during the fight and was worried that his DNA was in the car. As Buchanan and appellant left the motel room, Buchanan told him to "make sure that he had the knife."
Skinner met Buchanan and appellant again the next day at a house in Antioch. Appellant had cleaned up and had a white gauze bandage on his hand. The three of them and a man named Rick Torres discussed a newspaper article reporting that the other participant in the knife fight had died. They also discussed Buchanan's idea that appellant should break a window and put glass in his pocket in case he was arrested, to create an innocent explanation for the cut on his hand. While at the house, appellant received repeated cell phone calls from Danielle Wells.
Skinner and Buchanan eventually left the house and went to a park, where Buchanan threw appellant's shoes into a trash can. They later returned and retrieved the shoes, took them to a house in Antioch, and burned them in the back yard along with a bag of bloody clothing appellant had brought with him. Appellant told Buchanan he needed to steal a Firebird for its seats because his blood was on the seats in Wells' car. Later, Skinner used her credit card to rent a motel room for appellant and Buchanan in Antioch.
On May 5, 2005, Antioch police officers were watching appellant outside a house in Antioch. Appellant had a gauze bandage wrapped around his left hand. Officers saw him drive off in a pick-up truck. A marked patrol car started after appellant. Appellant suddenly put the truck in reverse, drove backwards over a curb, and crashed into a parked car. While the truck was still in motion, appellant jumped out and fled on foot. With several police officers in pursuit, appellant ran to a nearby house and began to climb over a backyard fence. An officer and a police dog caught appellant and dragged him down off the fence as he resisted. Officer Matthew Harger testified that the dog did not bite appellant's hand.
Later that day, a police photographer arrived at the hospital to photograph appellant's hands. Appellant became aggressive and angry, and tried to hide his hands. Several officers had to restrain him as he thrashed around on the gurney. He had fresh injuries on his right hand and legs. The left hand had a wound that appeared to have been stitched and was starting to heal.
Stephanie Smith was pregnant with Wolf's child when he was killed. After Wolf's death, she began dating appellant. During their relationship, appellant told Smith he killed Wolf because of "disrespect" Wolf showed him. Appellant recounted going with Wells to the BART station to pick up Wolf, sitting next to him in the back seat of the car, and driving to the Runaway Bay Apartments. Appellant said he was holding a knife when they all got out of the car.
In August 2007, defendant Madison was apprehended on an outstanding warrant by law enforcement in Jeffersonville, Indiana. He was with Stephanie Smith, who described the two of them as being "on the run." Smith told a U.S. marshal that one of the reasons Wolf was killed was that "he was a rat."
Danielle Wells and Madison were dating at the time Wolf was killed. By the time of the trial, she had given birth to Madison's daughter. Wells had also dated Steve Buchanan. In January 2008, and following Nancy Skinner's testimony at the preliminary hearing in this matter, Wells attacked Skinner while both were in custody in a Contra Costa jail facility. Wells threatened to kill Skinner and Skinner's daughter. In February 2008, while being transported on a jail bus, Wells spit on Skinner and called her a "rat bitch." Wells also threatened Skinner and Smith during bus rides between the jail and the courthouse in February 2009, calling them "fucking rats."
Testifying under a grant of immunity, Wells stated that she picked up Wolf at the Pittsburg BART station in her red Firebird. Appellant, Madison, and Jay Jay Sanborn were with her. Wolf sat in the back seat between appellant and Sanborn. Wells said they dropped Wolf off at the Runaway Bay Apartments; everyone got out of the car and "I think Danny [appellant] and Jay just walked him across the street." Wells acknowledged that appellant got back in the car at some point and they drove off. Instead of returning to her court-ordered residential drug program that night, she violated her probation by remaining away for the next week. Shortly thereafter, she learned she was being sought by the police in connection with a murder investigation. She left for Bakersfield, also in violation of her probation. She was arrested in Bakersfield and brought back to Antioch.
Appellant's opening brief spells the names "JJ;" respondent's brief spells it "Jay Jay." Apparently this individual did not testify and we have come across no clarification on this point in the record.
On April 8, 2009, the jury found appellant guilty of second degree murder, and found that he personally used a deadly weapon. The jury acquitted codefendant Madison.
On April 24, 2009, in a bifurcated bench trial, the court found true the allegations that appellant had suffered four prior strike convictions and two prior prison convictions.
On August 21, 2009, the court sentenced appellant to 48 years to life in state prison. The court granted 899 days actual credit.
Also on August 21, 2009, appellant filed a timely notice of appeal.
On September 30, 2009, the court conducted a restitution hearing and ordered restitution in the amount of $24,468.08. Appellant filed a notice of appeal from this order (case No. A126883) and a motion to consolidate this appeal with the appeal from the judgment of conviction. By previous order of this court, the motion to consolidate was granted. However, appellant raises no issues with respect to the restitution hearing.
III. DISCUSSION
A. Gang Evidence.
Appellant contends that the court erred in admitting evidence of his involvement with a Contra Costa County gang known as the "CoCo Boys." He argues that it was irrelevant, overly prejudicial under Evidence Code section 352, and violated his state and federal constitutional rights to due process and a fair trial.
1. Facts.
According to expert testimony at trial, the CoCo Boys, or "CoCo County," is "the dominant Caucasian gang" within the Contra Costa County jail system. The gang uses the slogan "snitches lie in ditches," meaning that those who cooperate with law enforcement are subject to violent retaliation, including being killed. According to Steve Buchanan, who had been a CoCo Boys member since 1995, people would want to kill him because of his cooperation in this case. A CoCo Boys member earns status for "getting a snitch." Buchanan said both appellant and Madison were members of the CoCo Boys.
Wolf was housed in protective custody from March 2005 until he was paroled on April 25, 2005. About a month before he was paroled, Wolf reported being in fear of the CoCo Boys and requested protective custody housing at the county jail where he was then incarcerated. In CoCo Boys culture, being housed in protective custody carries significant negative stigma.
Before trial, appellant filed a motion in limine to exclude "gang" evidence. The prosecution argued that, although the "CoCo Boys doesn't meet the definition of a street gang" for purposes of charging a gang offense or enhancement, appellant's affiliation with a group notorious for hostility and violence toward snitches was relevant to motive. The CoCo Boys were known to have an extreme dislike for snitches and to retaliate with violence toward anyone perceived to be, or identified as, a snitch. The prosecutor also argued there was "ample and significant" evidence tying both defendants to the gang and evidence that they attacked the victim because of his status as a snitch. Thus, argued the prosecutor, evidence regarding the CoCo Boys and its beliefs and customs was relevant and probative of why Wolf was singled out and attacked. Ultimately, the trial court ruled that both defendants' affiliation with the CoCo Boys and their belief that the decedent was a snitch were "certainly relevant and probative" with respect to motive, and that the probative value of this evidence outweighed the prejudicial effect.
Codefendant Madison also filed an in limine motion to exclude such evidence.
The admissibility of evidence of appellant's gang affiliation and possible gang-related motive for Wolf's murder arose repeatedly at trial. The prosecutor provided a lengthy offer of proof concerning testimony from a law enforcement gang expert. The trial court ruled that general opinion testimony about appellant's involvement in the CoCo Boys was admissible, but excluded as unduly prejudicial some evidence of appellant's specific gang-related activities.
Agent Vincent Lawson, a parole agent in the gang unit of the Department of Corrections, testified regarding classifying and housing inmates in state prisons generally and at San Quentin in particular. Inmates who are labeled as snitches are placed in protective custody and segregated from the rest of the prison population for their own protection. Agent Lawson also testified regarding the hierarchy of prison gangs, their self-segregation by race, and the custom that each racial group would deal with a snitch in that group. Otherwise, inmates from another racial group would take care of the problem and the group that failed to act would be seen as weak.
Alfonso Tucker, deputy sheriff with the Contra Costa County Sheriff's Department, testified as an expert regarding the structure and hierarchy of gangs. The CoCo Boys are the dominant white gang in the county and control the behavior and actions of all white male and female inmates. If they did not handle problems with members of their own race, other gangs would label them weak.
During Deputy Tucker's testimony, the trial court reiterated that gang evidence was admitted for the purpose of establishing motive. The court excluded expert opinion evidence that either appellant or Madison was given specific authorization by gang leadership to kill Wolf. Also excluded was the opinion that CoCo Boys snitches are potentially subject to retaliatory killing.
In addition to testimony by law enforcement and Buchanan, evidence pertaining to the CoCo Boys and other gang-related evidence admitted at trial over objection included pictures of Madison's gang tattoos and documents identifying him as a gang member in prison, a letter to appellant from known CoCo Boys gang member Matthew Jagger, a photograph including Jagger with CoCo Boys tattoos and drawings, and a photo of CoCo Boys gang members Shane and Bobby which states, "Danny, you've only been here a minute but it's enough for me to like your style. Good luck with everything and keep in touch. Love and respect, Bobby," with CoCo Boys symbols and swastikas.
Based on a hypothetical about these documents and Buchanan's testimony, Tucker opined that appellant is a member of CoCo Boys. Based on a different hypothetical, Tucker was also of the opinion that Madison was an active CoCo Boys member.
The trial court gave a limiting instruction regarding the purposes for which the jury could consider the gang evidence: "Evidence was received as to the alleged membership of the defendants in a gang. You may consider such evidence to the extent you find it relevant only as to issues of motive and intent. You may not consider it as evidence of any defendant's character, nor as evidence of predisposition to engage in criminal conduct." In her closing argument, the prosecutor emphasized this point: "Motive is the only thing that the CoCo Boy[s] evidence came in for . . . ."
2. Legal Principles.
" 'Only relevant evidence is admissible (Evid. Code, § 350; [citations]), and, except as otherwise provided by statute, all relevant evidence is admissible[.] (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)' (People v. Crittenden [(1994)] 9 Cal.4th [83,] 132.) 'Relevant evidence is defined in Evidence Code section 210 as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.]" (People v. Bivert (2011) 52 Cal.4th 96, 116-117.)
Relevant evidence may, however, be excluded under Evidence Code section 352 if its probative value is substantially outweighed by the danger of undue prejudice. Prejudice in this context means " 'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]' " (People v. Heard (2003) 31 Cal.4th 946, 976.) In other words, " '[t]he prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 958.)
The trial court has broad discretion to determine both the relevance of the evidence and whether the prejudicial effect of that evidence outweighs any probative value. (People v. Horning (2004) 34 Cal.4th 871, 900.) A trial court abuses its discretion only if it exercised that discretion in " 'an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Gutierrez (2009) 45 Cal.4th 789, 828.)
3. Analysis.
Appellant contends the gang evidence was irrelevant and prejudicial, and undermined the fairness of his trial. We find no abuse of discretion. "Although evidence of a defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged—and thus should be carefully scrutinized by trial courts—such evidence is admissible when relevant to prove identity or motive, if its probative value is not substantially outweighed by its prejudicial effect." (People v. Carter (2003) 30 Cal.4th 1166, 1194; see also People v. Williams (1997) 16 Cal.4th 153, 193 ["gang evidence is admissible if relevant to motive or identity"]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 ["Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related."].)
Here, the evidence that appellant was a member of the CoCo Boys and the CoCo Boys' attitude toward snitches tended to establish appellant's motive for attacking and stabbing Wolf, whom he perceived to be a CoCo Boys snitch. Other evidence tending to explain the murder included the CoCo Boys' reputation for violent retaliation against members who cooperate with law enforcement and the respect and status gained by members who mete out punishment to snitches. There was testimony that Wolf had expressed fear of retribution by the CoCo Boys; he had been housed in protective custody in state prison and county jail until his release; and he was killed within hours of his release on parole. In addition, at least three of the four people who picked Wolf up from the BART station (appellant, Madison, and Wells) were affiliated with the Coco Boys, as were two of the three people (appellant and Madison) who chased Wolf toward the place where he was killed. That night, appellant contacted Buchanan, a fellow CoCo Boys member, who assisted in disposing of the evidence and provided appellant with a place to stay. Appellant told Buchanan that Wolf was a "rat," and told Nancy Skinner that he was in a knife fight with a "rat." Fellow CoCo Boys member Madison fled the state after the murder. From this evidence, the jury could reasonably infer that appellant killed Wolf as a service to the gang and in order to improve his status in the organization. The gang evidence was both relevant and highly probative on the issue of why appellant would kill Wolf.
Appellant argues that the evidence regarding gangs was highly inflammatory and served only to prejudice the jury against him. First, he contends that the alleged gang-related motive was mere speculation and contrary to the prosecution's evidence, citing Buchanan's testimony that appellant said nothing about attacking Wolf to gain status within the CoCo Boys. This testimony, however, did not conflict with the prosecution's theory that appellant was motivated by the gang's disdain for snitches. Moreover, prior to this testimony, Buchanan had already testified, "I don't really remember the details [about what led up to the knife fight], but he said the dude was a rat paroled from P.C. [protective custody]." Apparent in this statement is the importance to appellant of Wolf's status as a "rat" or "snitch," supporting the likelihood of a gang-related motive for the killing.
Appellant also argues that evidence of the relationship between the CoCo Boys and white supremacist prison gangs invited speculation that Wolf's murder was based on orders given to the CoCo Boys by a more powerful prison gang such as the Aryan Brotherhood. However, appellant points to no testimony in the record or even a suggestion at trial that Wolf's murder was ordered by another gang, and it was clear that the killing did not take place in prison where gang hierarchy is more influential. Moreover, Deputy Tucker testified regarding the importance to gangs, including the CoCo Boys, of internal discipline of members who cause a problem or get out of line, known as "handling your business," in order to maintain the gang's power and authority.
Appellant also contends that the prosecution could have put forward its theory that Wolf was killed because he was a snitch without any reference to the CoCo Boys. Appellant relies on People v. Memory (2010) 182 Cal.App.4th 835, 859 (Memory), in which the Third District reversed the convictions of two defendants following a bar fight because of the trial court's error in admitting irrelevant and inflammatory evidence of the defendants' membership in a motorcycle club. "Although couched in terms of motive and intent, the People offered evidence of the [motorcycle club] attempting to show defendants had a criminal disposition to fight with deadly force when confronted, but there was no evidence of this disposition." (Id. at p. 859.) The error was prejudicial because the gang evidence "served not only to destroy defendants' credibility and paint them as violent, but also to bolster the credibility of prosecution witnesses who were otherwise suspect." (Id. at p. 863.) Notably, the court recognized "that with an appropriate foundation and limitations, testimony regarding the beliefs and practices of an organization may be relevant to explain the conduct of a member on a particular occasion." (Id. at p. 862.) Unlike the situation in Memory, the CoCo Boys evidence here was intertwined with the snitch evidence and was relevant to the issue of motive. Wolf's identity as a snitch placed him directly at odds with the CoCo Boys in light of the group's attitude toward snitches. There was no evidence that appellant, separate and apart from the CoCo Boys, had any violent aversion to people who assisted law enforcement. The CoCo Boys' gang culture provided the connection between Wolf's murder and appellant's perception that he was a rat.
Appellant cites a number of cases in arguing that the gang evidence was both irrelevant and unduly prejudicial, but he neglects to explain how any of these cases is on point, beyond the bare fact of involving gang-related evidence that the court ruled inadmissible. (See, e.g., Memory, supra, 182 Cal.App.4th 835 [see above]; People v. Albarran (2007) 149 Cal.App.4th 214 [gang evidence improperly admitted where it was used to create a motive not otherwise suggested by the evidence]; People v. Maestas (1993) 20 Cal.App.4th 1482, 1497 [gang evidence was cumulative and inflammatory where other evidence established a close personal relationship between the defendants and was more compelling than the evidence of common gang membership].) Nor does our consideration of these cases persuade us that their reasoning is applicable here.
Finally, we reject appellant's argument that the gang-related evidence was improper because no formal gang enhancements were alleged against appellant. Our Supreme Court squarely addressed this issue in People v. Hernandez (2004) 33 Cal.4th 1040, 1049: "In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of . . . membership, signs, symbols, beliefs and practices, . . . and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." Here, the probative value of the gang evidence was substantial on the issue of motive, well in excess of "minimal."
Appellant next contends that the prejudicial effect of the gang evidence did more than violate state evidentiary rules; it undermined the fairness of his trial and thus requires reversal of the judgment. Appellant contends the gang evidence portrayed him as a violent person with violent friends, a danger to society who should, therefore, be punished. Absent the gang-related evidence, according to appellant, it is reasonably probable that the jury would have returned a more favorable verdict because the case against him was weak. (People v. Watson (1956) 46 Cal.2d 818, 836.) In addition, the People cannot "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" in this trial. (Chapman v. California (1967) 386 U.S. 18, 24.)
First, appellant argues that the evidence connecting appellant to the stabbing was "nearly all the result of immunized testimony" and favorable deals from the prosecution for cooperating witnesses, and that these witnesses' testimony was inconsistent and unreliable. He cites Skinner's testimony that she was testifying in order to avoid going to prison and was being granted witness protection benefits. She said she was unable to remember the details of events and had trouble distinguishing her actual memories from what police told her. Smith told a private investigator that her preliminary hearing testimony, which was read to the jury, was a lie. In a police interview, Smith said she had never spoken with appellant about Wolf's death. Buchanan, who was also in the witness protection program, had access to the discovery and preliminary hearing testimony before testifying. A police inspector testified that Buchanan did not mention appellant's stealing a car until the second interview.
Stephanie Smith refused to testify at trial and was held in contempt of court. Her preliminary hearing testimony was read to the jury.
We disagree with appellant and find that the gang-related evidence was not unduly prejudicial. Appellant's codefendant, Madison, was acquitted despite stronger evidence of his CoCo Boys affiliation than that pertaining to appellant. The jury saw photos of Madison's CoCo Boys' tattoos and heard testimony that county jail records reflected Madison's CoCo Boys' membership, while no such photographic or records evidence was presented regarding appellant. If Madison was not unduly prejudiced by gang-related evidence, it follows that appellant similarly was not.
Moreover, the gang-related evidence would not have unduly prejudiced appellant because, as respondent points out, the jury heard evidence that a number of witnesses were engaged in a lifestyle that centered on membership in, or affiliation with, the CoCo Boys and involved criminal activity including methamphetamine, repeated incarceration, and other "unsavory activities associated with that subculture." The prosecutor advised the jury in the first lines of her opening statement: "This trial is going to take you into a different world, . . . a world that's full of people you're not going to like, conduct you're not going to like, a world that is inmeshed [sic] in a culture of basically drug use and revolving doors between arrests, local custody, state prison, release, get back into trouble, hang out with the same people, go back into custody, go to San Quentin, released." Knowing that these associations and activities took place in the context of a gang is unlikely to have unduly influenced the jury.
To minimize any prejudicial impact resulting from the gang evidence, the trial court gave a limiting instruction advising the jury that it could consider gang evidence "only as to issues of motive and intent," and not "as evidence of any defendant's character, nor as evidence of predisposition to engage in criminal conduct." During closing argument, the prosecutor reminded the jury of the limited purpose of the gang evidence. We presume that the jury followed the court's instruction. (People v. Wilson (2008) 44 Cal.4th 758, 803.)
In sum, the gang-related evidence had substantial probative value on the issue of motive which was not outweighed by its prejudicial effect, and thus there was no abuse of discretion under Evidence Code section 352. We find no error under either state or federal standards.
Finally, even if admission of some or all of the gang evidence was error, the evidence of appellant's guilt was strong without consideration of any gang-related aspects. Multiple witnesses placed appellant in the car that picked up Wolf and drove him to the apartment complex; multiple witnesses recounted appellant's admission that he stabbed Wolf; DNA evidence established the fact that appellant was bleeding at the street where Wells had stopped the car; multiple witnesses described the wound to appellant's hand right after the murder; multiple witnesses described appellant in possession of the bloody knife and described appellant's bloody clothing shortly after the murder; multiple witnesses described discussions with appellant about concealing evidence of the stabbing and preparing a false explanation for his wounded hand; law enforcement witnesses described appellant's attempt to avoid capture in a vehicle and then on foot, and his attempt to conceal his wounded hand. None of this evidence is gang-related, yet it provides ample proof that appellant killed Wolf.
The gang evidence was relevant to motive, but the jury heard additional motive-related evidence apart from the CoCo Boys. Appellant had expressed animosity towards Wolf, as the jury learned from appellant's then-girlfriend, Smith, who testified that appellant said he killed Wolf over a perceived lack of respect. Smith testified that "there was a number of things that [Wolf] had said or done" that motivated appellant to kill him, including a telephone conversation between Wolf and a then-incarcerated appellant in which Wolf told him, "Yeah. And I'm wearing your shoes." This asserted motive would not have supported a voluntary manslaughter verdict based on provocation as appellant contends, however, because such interactions "would not drive any ordinary person to act rashly or without due deliberation and reflection." (People v. Najera (2006) 138 Cal.App.4th 212, 226.) This is particularly so in light of the fact that the killing took place long after the telephone conversation, and the fact that appellant and others chased Wolf on foot before appellant stabbed him. Both factors demonstrate sustained hostility rather than a sudden fit of rage due to provocation. (See People v. Verdugo (2010) 50 Cal.4th 263, 293 [jury instruction on provocation and heat of passion].)
Appellant's statements to Smith, in addition to evidence that the attack on Wolf began as a robbery, provided evidence of a non-gang-related motive for the murder, minimizing the chance that any gang-related evidence prejudiced appellant. Thus, any error in admitting the evidence was harmless. B. Hearsay Testimony.
Appellant contends the admission at trial of hearsay statements by codefendant Madison, who did not testify, violated his Sixth Amendment confrontation rights within the meaning of Bruton v. United States (1968) 391 U.S. 123 (Bruton) and People v. Aranda (1965) 63 Cal.2d 518 (Aranda), partially abrogated by constitutional amendment as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465 (see fn. 8, post). We disagree because Madison's statements were nontestimonial and thus, under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), appellant's confrontation clause rights were not implicated.
1. Facts.
In a motion in limine, appellant objected in general to the admission of hearsay, citing the Sixth Amendment, Bruton, and Aranda. During trial, appellant prospectively objected on confrontation clause grounds to aspects of Stephanie Smith's and Steve Buchanan's testimony in which they would repeat statements by codefendant Madison about events on the night of the murder. The trial court granted the defense motion to exclude certain statements Madison made to Smith regarding appellant's conduct and statements that indicated appellant's presence in the car that picked up Wolf at the BART station. Pursuant to that ruling, Smith's testimony about Madison's description of who was in Danielle Wells' car that night did not mention appellant, but instead referred to "others."
Appellant takes issue here with two other portions of Smith's testimony regarding statements by Madison that the trial court admitted. First, Madison told Smith that immediately after the stabbing, appellant said, "I really fucked up now. Just leave me here. Just leave me here." The court ruled that the statement attributed to appellant was admissible as "an excited utterance made contemporaneously with the event or immediately following it and under the influence of that excitement . . . ." Accordingly, the jury heard the following testimony from Stephanie Smith:
"Q: Did Mr. Madison tell you about anything that he saw?
"A: Yes.
"Q: What did he tell you?
"A: He said he saw others start to get on Keith like to beat him up first and that [Madison] saw [appellant] standing there saying, 'I really fucked up now. Just leave me here. Just leave me here.' "
Second, Madison told Smith that he saw appellant's injured hand after the attack on Wolf and helped appellant into Wells' car. The trial court determined that these statements were admissible as declarations against penal interest because they demonstrated Madison's first-hand knowledge of the attack on Wolf and that Madison helped appellant to get away. The jury heard the following testimony from Smith:
"Q: Did Mr. Madison tell you how Mr. Jones appeared when Mr. Jones was saying, 'I really fucked up. Just leave me here?"
"A: Seemed like he wasn't even himself. Like he was - like he didn't even know what was going on.
"Q: Did he describe anything about Mr. Jones' physical appearance?
"A: Yes.
"Q: What did he see?
"A: That he had stabbed himself. . . .
"Q: Did Mr. Madison tell you what he did when Danny Jones told Mr. Madison, "Just leave me here. I really fucked up?"
"A: He said that he - he - 'Come on Danny. Let's get out of here. Come on.' Then helped Danny to the car. . . .
"Q: Did Mr. Madison tell you whether or not he and Mr. Jones left the area together?
"A: Yes.
"Q: How did they leave the area?
"A: In Danielle's car."
Appellant renewed his objection to this evidence on several grounds, including hearsay and speculation. The trial court admonished the jury that it could not "consider something that Mr. Jones purportedly said as against Mr. Madison" and that it could not "consider something that Mr. Madison purportedly said as against Mr. Jones. [¶] That's because neither one of them can call the other as a witness to cross-examine them about those statements. [¶] So you have to consider them for a limit[ed] purpose only and only as to whether either of those statements again, assuming you believe the[y] were made and are accurately recounted to you only to the extent those statements reflect on the responsibility of that defendant." In response to subsequent objections, the trial court repeated its limiting instruction.
Over objection, accompanied by the court's admonition, the jury also heard the following testimony from Smith:
"Q: Isn't it true that you previously told Investigator Lynn that Michael Madison told you that Daniel was bleeding, and that there was a reason he took Daniel away from there?
"A: Yes.
"Q: Because he didn't want to leave him there in that condition?
"A: Yes.
"Q: And he wanted to get him some place to render aid?
"A: Yes."
During Steve Buchanan's testimony, substantially similar statements by Madison about helping appellant flee the scene also drew objections by counsel on Aranda/Bruton grounds. The court admitted these statements subject to the same admonition limiting the use of the testimony. This testimony included the following:
"Q: Did you ask Mr. Madison if he was so pissed off at Danny then why did he tell Danny, "Come on. Let's go"?
"A: Yes, I did. . . .
"Q: Did you ask Mr. Madison why he didn't leave Mr. Jones' ass there? . . .
"A: Mike - when I talked to Mike, Mike was always mad a[t] Danny because Danny put him in that position. Danny took it upon himself to do what he did by himself. And he was always pissed off talking shit about, he wants to take off on Danny. [¶] And I asked him, 'Well, if you were so mad at Danny, why didn't you just leave him there?' And he told me that he was going to leave him there, but Danny had already come back to the car.
"Q: Did you ask Mr. Madison why he told Danny specifically, "Come on. Let's go"?
"A: Yes, I did.
"Q: What did Mr. Madison say?
"A: He said he wanted Danny to quit stabbing the dude." The court repeated the admonition that the statement was only admissible against Madison.
Prior to closing arguments, the trial court instructed the jury as follows: "You've heard evidence that defendants Daniel Jones and Michael Madison each made statements before the trial. Unless you were specifically directed otherwise at the time of the testimony, you may consider that evidence only against the defendant making the statement and not against the other defendant."
2. Legal Principles.
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.)
In both Bruton, supra, 391 U.S. 123 and Aranda, supra, 63 Cal.2d 518, the court addressed the situation in which a nontestifying codefendant's hearsay statement which implicates the defendant is introduced in a joint trial. In Bruton, the United States Supreme Court held that the introduction into evidence of a codefendant's confession which expressly implicated the defendant violated the defendant's Sixth Amendment right of cross-examination, even where the jury was advised to consider the statement only against the codefendant. (Bruton, supra, 391 U.S. 123.) In Aranda, which preceded Bruton, the court ruled the nontestifying codefendant's confession, which implicated the defendant, inadmissible (the codefendant had not received notice of his rights to counsel and to remain silent), requiring that both convictions be reversed. (63 Cal.2d at pp. 523, 527.) The Aranda court adopted "judicially declared rules of practice" for trial courts when presented with a nontestifying codefendant's statement that implicates a defendant: (1) redact portions of the statement referring to the defendant; (2) exclude the statement; or (3) order separate trials. (Id. at pp. 530-531.)
To the extent that Aranda requires exclusion of relevant evidence where exclusion is not otherwise required by federal constitutional law, it was abrogated by the Truth-in-Evidence provision of Proposition 8, which was adopted in 1982. (People v. Fletcher (1996) 13 Cal.4th 451, 465.)
Crawford, supra, 541 U.S. 36 fundamentally changed the analysis for determining whether the admission of a hearsay statement violates a defendant's confrontation clause rights. The United States Supreme Court held that the right of confrontation applies only to out-of-court testimonial statements, and that such statements are only admissible at trial when the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 68-69.) Subsequently, the court articulated the corresponding rule that the confrontation clause does not apply to nontestimonial hearsay. (See Whorton v. Bockting (2007) 549 U.S. 406, 420; Davis v. Washington (2006) 547 U.S. 813, 821)
Phrased another way, "[T]he confrontation clause has no application to out-of-court nontestimonial statements (Whorton v. Bockting[, supra,] 549 U.S. [at p.] 420 . . . ; People v. Gutierrez[, supra,] 45 Cal.4th [at p.] 812), including statements by codefendants. (United States v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85 . . . [Bruton must be viewed 'through the lens of Crawford and Davis;' if the challenged statement is not testimonial, the confrontation clause has no application]; see also U.S. v. Johnson (6th Cir. 2009) 581 F.3d 320, 326 ['[b]ecause it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to non-testimonial statements'].)" (People v. Arceo (2011) 195 Cal.App.4th 556, 571-575.)
If the out-of-court statement is not testimonial, it does not implicate the confrontation clause, and the task that remains is to determine whether it is admissible under the statutory laws of evidence as an exception to the hearsay rule. (People v. Garcia (2008) 168 Cal.App.4th 261, 291.)
3. Analysis.
Appellant contends that the admission of Madison's incriminating hearsay statements violated his Sixth Amendment right to confront witnesses. We disagree because Madison's statements were not testimonial under Crawford and thus appellant's confrontation rights were not implicated. (See People v. Arceo, supra, 195 Cal.App.4th at pp. 571-575 ["the confrontation clause applies only to testimonial statements"]; People v. Garcia, supra, 168 Cal.App.4th at p. 291 ["If the statement is not testimonial, it does not implicate the confrontation clause, and the issue is simply whether the statement is admissible under state law as an exception to the hearsay rule"]; see also People v. Cage (2007) 40 Cal.4th 965, 984 ["the confrontation clause is concerned solely with hearsay statements that are testimonial"].)
Appellant argues at length in his opening and reply briefs that, notwithstanding Crawford, Bruton is the controlling precedent here and the admission of Madison's statements requires reversal. We disagree for the reasons stated.
In Crawford, the Supreme Court "[left] for another day any effort to spell out a comprehensive definition of 'testimonial.' " (541 U.S. at p. 68.) It provided some guidance, however: "Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Ibid.) The court explained: "[The confrontation clause] applies to 'witnesses' against the accused—in other words, those who 'bear testimony.' [Citation.] 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Id., at p. 51.) Madison was not acting as a witness when he made the statements to Smith and Buchanan. His remarks were made during private, casual conversations; neither Smith nor Buchanan was a government officer, and Madison had no reason to think that his statements would be used as evidence in a criminal trial. Madison's statements were nontestimonial and appellant's confrontation rights were not implicated. C. The Autopsy Report and Related Testimony.
Appellant contends that the admission into evidence of the autopsy report and diagrams by a non-testifying pathologist and the related testimony of a pathologist who did testify violated his Sixth Amendment right to confront witnesses against him.
1. Facts.
The pathologist who performed the autopsy, Dr. Brian Peterson, moved to Wisconsin before trial. He did not testify. During pretrial motions the prosecution disclosed that it would call Dr. Gregory Reiber as its pathology expert. Dr. Reiber is a board-certified forensic pathologist employed by a private forensic pathology group, Forensic Medical Group, that contracted to provide medical services for the Contra Costa County Coroner's Office. Dr. Reiber had worked closely with Dr. Peterson at Forensic Medical Group, including succeeding him as president of the group, watching him perform autopsies, and reviewing his work. The court ruled that Dr. Reiber could testify as to the nature of the wounds on the body, "offensive or lack of defensive wounds," and the position of the body at the time of the wounds, but could not testify "as to any so-called crime scene reconstruction of the events."
The trial court received into evidence a copy of Dr. Peterson's autopsy report as both an official record and a business record, indicating that it could serve as evidence of "Dr. Peterson's determination as to cause of death" and as a basis for the trial witness's expert opinions. Counsel for Madison objected several times on grounds of hearsay, foundation, "Sixth Amendment," and "Crawford;" the objections were overruled and a continuing objection on these grounds was lodged.
Dr. Reiber reviewed Dr. Peterson's autopsy report in this case and photographs taken during the autopsy. Dr. Reiber opined that Dr. Peterson had observed standard procedures in conducting and documenting the autopsy, including the collection of reference samples. Dr. Reiber also testified regarding photographs and information in the report, including his disagreement with Dr. Peterson's characterization of the direction of force of a particular injury.
A pathologist called by codefendant Madison testified that she noted injuries to Wolf's hands in photographs taken during the autopsy, but those injuries were not documented in Dr. Peterson's autopsy report.
2. Whether the Claim Was Forfeited.
As a threshold issue, respondent contends that appellant has forfeited this claim by failing to object on confrontation clause grounds. Respondent argues that (1) appellant did not join in the objections on Sixth Amendment grounds of his codefendant; (2) appellant could have made a colorable argument that the autopsy report met the standard articulated in People v. Geier (2007) 41 Cal.4th 555 (Geier); and (3) at the time of trial, Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz) was pending before the United States Supreme Court, as was a petition for writ of certiorari in Geier, demonstrating that there was no inevitable futility to a Crawford objection. Appellant argues that (1) any such objection would have been futile because the California Supreme Court's decision in Geier was controlling at the time of trial, regardless of pending matters before the United States Supreme Court; (2) appellant's counsel sufficiently joined the objections of co-counsel, who took the lead on arguing objections, including Crawford, to admission of the autopsy report and the testimony of Dr. Reiber; and (3) co-counsel's objections were immediately overruled by the court, demonstrating that any further objection by appellant's counsel would have been futile.
Based on our reading of the record and the state of the law at the time of the trial, we find the question of forfeiture to be a close one. We will, therefore, consider the claim. Accordingly, we will not address appellant's alternative claim of ineffective assistance of counsel.
3. Admissibility of the Autopsy Report and Dr. Reiber's Testimony.
Appellant contends the admission into evidence of the autopsy report and the testimony of Dr. Reiber violated his Sixth Amendment right to confrontation.
As discussed in the previous section, in Crawford, the United States Supreme Court held that a criminal defendant's Sixth Amendment right of confrontation is violated by the admission into evidence of the testimonial statements of a witness who is not subject to cross-examination at trial unless that witness is unavailable and the defendant had a prior opportunity to cross-examine.
In Melendez-Diaz, supra, 557 U.S. 305 , "certificates of analysis" reporting the results of forensic analysis were admitted into evidence (without accompanying live witness testimony) to show that material seized from the defendant was cocaine. (Id. at pp. 2530-2531.) The Supreme Court held that the certificates were testimonial statements within the meaning of Crawford, "functionally identical to live, in-court testimony," because they were affidavits made for the purpose of establishing a fact and under circumstances that would lead an objective witness reasonably to believe that they would later be used at trial; the court noted that the sole purpose of the "certificates" was to provide prima facie evidence at trial. (129 S.Ct. at p. 2532.) The court also held that the affiants were witnesses subject to the defendant's Sixth Amendment right of confrontation. Thus, unless the affiants were shown to be unavailable and the defendant had had a prior opportunity to cross-examine them, the defendant was entitled to confront them at trial.
The Melendez-Diaz court rejected the argument that the analysts' affidavits were admissible as business records. The court explained: "Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here—prepared specifically for use at petitioner's trial—were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment." (Melendez-Diaz, supra, 129 S.Ct. at pp. 2539-2540.)
Recently, in Bullcoming v. New Mexico (2011) ____ U.S. ____ , the court held that a blood alcohol analysis report was testimonial and that it could not be admitted into evidence through the "surrogate testimony" of an analyst who did not conduct the testing and prepare the report. (131 S.Ct. at pp. 2313-2317.)
After Crawford, but before Melendez-Diaz, the California Supreme Court held, in Geier, supra, 41 Cal.4th 555, that a DNA report, relied on at trial by a DNA expert who did not conduct the testing, was not testimonial within the meaning of Crawford. In the time since the United States Supreme Court's decision in Melendez-Diaz, the California Supreme Court has granted review in a number of cases to determine the continued validity of Geier. (See, e.g., People v. Anunciation (Dec. 22, 2009, D054988 [nonpub. opn.]), rev. granted March 18, 2010, S179423; People v. Gutierrez (2009) 177 Cal.App.4th 654, rev. granted Dec. 2, 2009, S176620; People v. Lopez (2009) 177 Cal.App.4th 202, rev. granted Dec. 2, 2009, S177046; People v. Dungo (2009) 176 Cal.App.4th 1388, rev. granted Dec. 2, 2009, S176886; People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, rev. granted Dec. 2, 2009, S176213.)
In the present case, we have doubts that the autopsy report and Dr. Reiber's expert testimony, which was based on the autopsy report, were properly received in evidence in light of Crawford and Melendez-Diaz. Moreover, we note that two of the cases currently on review before our Supreme Court involve similar facts: an autopsy report prepared by a nontestifying pathologist and the expert testimony of a pathologist who based his opinions on the report. (People v. Dungo, supra, 176 Cal.App.4th 1388, rev. granted Dec. 2, 2009, S176886 and People v. Anunciation, supra, [nonpub. opn.] rev. granted March 18, 2010, S179423.)
However, we need not resolve this issue because of our conclusion that any error in admitting the autopsy report or permitting Dr. Reiber's testimony was harmless beyond a reasonable doubt.
Appellant contends he was prejudiced by Dr. Reiber's testimony that the autopsy report did not indicate any defensive wounds. As a result, he argues, he could not present a self-defense theory. He contends that this testimony, plus testimony about the twisting nature of the knife, also impacted appellant's manslaughter defense based on provocation. Appellant further complains that, before trial, the prosecution and defense had agreed to stipulate as to the cause of death and present no testimony regarding the autopsy. Instead, on short notice, the defense had to challenge Dr. Reiber's testimony, Dr. Peterson's qualifications, and both his reputation and that of Forensic Medical Group.
We reject this argument for several reasons. First, the autopsy report was admitted as hearsay evidence expressly "limited as to . . . Dr. Peterson's determination as to cause of death." There was no dispute at trial that the cause of death was a stab wound to the heart. Second, the presence of defensive wounds on Wolf's body would do nothing to indicate that Wolf was an aggressor in the conflict. The jury heard that appellant suffered wounds to his hands, but since that evidence did not support giving self-defense instructions, the defensive wounds to Wolf certainly would not. Third, if Dr. Peterson failed to describe or photograph defensive wounds at the time of the autopsy, nearly four years before trial, there is no reason to think that he would have recalled such wounds had he been called as a witness. A defense expert contacted Dr. Peterson during her review of the case, asked him about injuries to Wolf's hands that had been photographed but not documented in the report, and Dr. Peterson's response indicated no independent recall of those injuries. In addition, Dr. Reiber testified that he independently reviewed photographs of the victim's hands and saw nothing he would characterize as a defensive injury. Finally, the autopsy photographs were available to, and utilized by, the defense. The defense expert testified that the photos revealed abrasions and injuries to Wolf's hands and knuckles, as well as other stabbing patterns, which the expert interpreted as defensive wounds.
Furthermore, as discussed ante, section III.A., the evidence of appellant's guilt was strong. Any error in admitting the autopsy report or Dr. Reiber's testimony was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Davis (2009) 46 Cal.4th 539, 620 [applying Chapman to a Crawford claim].) D. Marsden Motions.
Appellant brought five motions to have his appointed counsel, Denise Nolan, discharged and replaced by new counsel in this case. Each time, pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), the trial court held a hearing to inquire as to appellant's reasons for seeking a new attorney. Each time, the court denied the motion. Appellant contends that in light of the complete breakdown of the attorney-client relationship, the trial court's failure to appoint a new attorney deprived him of his right to counsel.
1. Facts.
On November 9, 2007, after the preliminary hearing but prior to trial, the trial court (the Honorable Teresa J. Canepa) held a Marsden hearing. Appellant cited examples of dissatisfaction with his attorney's responsiveness to requests for information, timeliness in providing him with case discovery, honesty, communication, and case preparation. He asserted that counsel failed to respond to requests for information from him and his family; that on more than one occasion she had promised to come and visit him but did not show up; that she had refused to confer with him on preparation of the defense; and that he had refused to see or talk with her at times and now refused to work with her due to the irreparable breach in their relationship and lack of trust. He said counsel had failed to investigate the case; witnesses were never contacted; counsel failed to object to the prosecutor's motions for continuances and consolidation; and counsel did not file motions before the preliminary hearing for discovery and to get a confidential informant. Appellant stated that when he was charged in a separate case, no one from the public defender's office showed up for the arraignment, and then later a different attorney showed up. Appellant stated that counsel lied to him, he had no faith in her and did not trust her.
Appellant's counsel, Denise Nolan, then described her efforts to make prosecution discovery available and to maintain contact with appellant and his family. She stated that some of the discovery was provided during the course of the preliminary hearing and that appellant had seen most but not all of it. She said she had spoken to family members at the preliminary hearing and an uncle on one occasion. Nolan indicated that a Marsden hearing had been held in appellant's other case; the motion was denied. In response to a question from the court, she stated that she had been a criminal defense attorney for 27 years and had previously represented defendants accused of murder.
The court concluded that appellant had not demonstrated grounds for relief, finding "a lack of communication" on appellant's part and that it appeared that counsel was "performing everything that she is required to do." The court noted that counsel provided prosecution discovery to appellant, had been in touch with appellant's family, and that she was working to keep the case on track. The court found that she was "performing diligently and effectively" in preparing for trial, following a three-week preliminary hearing and an unusually large volume of documents.
On December 12, 2007, Judge Canepa held another Marsden hearing. Appellant stated that it was his fourth attempt to fire his attorney due to a "conflict of interest." He said Nolan had no interest in investigating his case and defending him properly. He had not seen her since the preliminary hearing; she had lied to him about coming to see him; and he was going to refuse to work with her. Appellant was concerned that she had spoken to one of her colleagues about his case and why appellant was refusing to talk to her, which appellant felt was a breach of the attorney-client relationship.
The court advised appellant that refusing to cooperate with counsel was not a basis for granting a Marsden motion.
Nolan said she was hopeful that she and appellant could get back on track. She and appellant had been able to work together during the preliminary hearing. She confirmed that the attorney who appeared with appellant in his other case and had spoken with him was a colleague in the alternate defender's office. Nolan was concerned that appellant thought she had lied, but they had not been able to talk about it. She indicated that there was a lot of work to be done in preparation for trial, and she was doing it. Although it would be helpful if appellant were participating, it could be done otherwise with her investigator.
The court denied the motion, finding that appellant had not sustained the burden of establishing either a lack of competence or inadequate representation.
A year later, on December 31, 2008, the court (the Honorable John C. Minney) held another Marsden hearing. Appellant stated that he was "under duress" and that Nolan's representation was "detrimental to having a fair and impartial trial." He was concerned that originally, due to a conflict with the public defender's office, his case had been transferred to the alternate public defender's office and assigned to Nolan. Several months ago, Nolan had transferred to the public defender's office along with his case, but the conflict had not been addressed. He also expressed concern that she had told him several times that she would visit and go over discovery he had not seen, but the visits had not occurred. His family had tried to contact her, but she never returned phone calls. Appellant also stated that some of his witnesses were refusing to cooperate with her.
Nolan addressed the discovery in the case; she described voluminous documents, including approximately 3,200 pages of discovery thus far, plus 1500-1600 pages of transcripts from the preliminary hearing. Witnesses and more discovery had been identified after the preliminary hearing. Trial preparation included referencing and cross- referencing almost 5,000 pages of documents. She had written a letter to appellant, explaining the investigation and trial preparation. She went to visit him to go over a CD containing evidence, but appellant refused to see her so she left the CD for him to review. She indicated that she and appellant had reviewed DVD's of new witnesses. She said she realized appellant was frustrated and that it was a very serious case. She said she was ready to go to trial, had reviewed and organized the 5,000 pages, and had talked regularly with counsel for the codefendant. There was still some ongoing investigation, but she was confident that it would be completed in time for trial. Counsel stated that she would like to meet with appellant as soon as possible to review DVD's and transcripts, and to discuss information and witnesses in the case.
Appellant disputed counsel's statement that she had gone over the new discovery with him. He had seen some, but not all, of the old and new discovery (described as videos and DVD's). He got the CD counsel left for him, but he was unable to play it. He was supposed to be starting trial in less than two weeks, but had not seen his attorney since late October. They had not discussed his defense or witnesses; the investigator had not talked to people appellant suggested. Appellant stated that as long as Nolan was on his case, he would refuse to cooperate with her, as would "a lot" of his witnesses and family members.
The court denied the motion, finding that appellant had failed to show improper or inadequate representation. The court also urged appellant to "set aside this closed door attitude" and work with counsel in preparing for trial.
On March 23, 2009, during trial, the court (the Honorable Terence L. Bruiniers) held a Marsden hearing. Appellant stated that he and Nolan had never gotten along. He explained that he had brain surgery in 1997 and was having trouble understanding what was happening at trial. Before trial, no investigative work was done. Appellant gave Nolan names, but she did not contact them. She also had not discussed trial strategy with him.
Now Associate Justice in Division Five of this court.
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The court observed that Nolan had been cross-examining the prosecution's witnesses and was "more than familiar" with the facts of the case. The court had also been signing removal orders for witnesses that Nolan intended to call on appellant's behalf. The court questioned appellant closely about what he did not understand and then stated on the record: "I don't see anything so far to indicate a basis to declare a doubt as to your competence."
Nolan confirmed that there had been prior Marsden motions and agreed that appellant did not want to work with her and that there had been difficulties at times in their communication. She stated that she had gone over various aspects of trial preparation with appellant, including the defense witnesses, witness preparation, evidence, and trial strategy. She expressed concern that, although they had gone over these matters, appellant had stated several times that he did not understand what was happening.
Appellant interjected that counsel was lying. He said he and Nolan had not gone over trial preparation or witnesses. He had not seen all the witness interviews, and they had only talked about a few witnesses counsel intended to call. She had not pursued contacting several witnesses appellant identified after having trouble tracking them down.
Nolan responded that she and appellant had a challenging relationship in that appellant chose not to speak with her at times, and some of the letters she sent him were returned. She was concerned that appellant was so dissatisfied that he would not provide information. She stated that investigation was being done in the case; an investigator had contacted numerous witnesses and was on the witness list. She repeated her concern that appellant did not understand what was happening and did not seem to remember things they had discussed.
Appellant responded that everything counsel was saying was a lie. Appellant thought she was going to call a lot more witnesses in his defense. He stated that "a lot of people are refusing to cooperate with her because of my concerns that I don't trust her." He asked the court to relieve Nolan as counsel.
The court denied the motion, stating: "I see no evidence that Ms. Nolan has failed to provide competent and qualified representation here. [¶] I see no indication that [appellant] is not capable of understanding the proceedings or capable of cooperating with counsel should he choose to do so. [¶] I understand there may be some strains in the attorney/client relationship. That does not provide a basis for me to relieve counsel at this point, Mr. Jones. Certainly not in the middle of trial." In addition, the court explained that decisions such as which witnesses to call and strategy in presenting the defense were professional decisions the lawyer has to make on the client's behalf "whether you agree with all of them or not." The court also advised appellant that it was in his interest to cooperate with counsel.
Appellant stated that he had tried to cooperate, but repeated his complaint that counsel had not contacted his witnesses. The court acknowledged the difference in representations it had received on that issue and indicated that it accepted what Nolan said regarding what she had done in the case. The court stated it was confident that Nolan had investigated the case, was continuing to do so, and that she was working hard on his behalf. The court repeated that it was in appellant's interest to cooperate with his attorney. Appellant replied, "I'm going to continue to refuse."
Two days later, on March 25, 2009, Judge Bruiniers held another Marsden hearing. Appellant stated that he tried to talk to counsel the previous day but after five minutes she got up and left. She said she would have 20 minutes to talk with him the previous Sunday, but in the middle of the discussion she left. He gave her questions to ask various witnesses at trial and at the preliminary hearing, but she did not ask them. She had not talked with him about the preparation of the defense before trial. She continued to lie to him; he had no faith and did not trust her. She failed to investigate his case and no investigator was assigned. She failed to file motions and failed to object to motions filed by the defense. She failed to communicate with appellant; failed to go over discovery with him; his family and witnesses said they would not work with her; and appellant refused to share any information with her. Appellant complained that Nolan spoke with some, but not all, of the witnesses, and she refused to call as witnesses certain individuals he identified.
Counsel explained that she met with appellant the previous day, but there was a breakdown in communication. Appellant only wanted to talk about things they had already gone over, and he did not seem to understand her responses. The investigator had followed up on information provided in the last week, but most of the information had not led anywhere because of inability to locate some people and other people's unwillingness to speak with the investigator. She confirmed having met with appellant the previous Sunday. She explained to him that her time was limited because she needed to get back to the office to prepare for trial. She spent close to an hour meeting with appellant, but they spent the time going over things they had gone over before and appellant was frustrated and dissatisfied with what had happened with certain witnesses. Nolan also stated that sometimes appellant's family would speak with her and sometimes they would not. In discussions about the best way to proceed, counsel tried to explain to appellant that, based on trial strategy, some of the witnesses might not be helpful. Counsel acknowledged that appellant did not like working with her, that it was a difficult situation for him.
The court stated, "I haven't seen any indication at all that Ms. Nolan has been ineffective in her trial preparation or trial presentation. [¶] And while I understand for you this is stressful and perhaps confusing in some areas, this trial lawyer, Ms. Nolan, is one of the most experienced trial lawyers in her office." The court denied the motion, finding no legal basis for removing Nolan from the case.
2. Legal Principles.
Under the United States and California Constitutions, a criminal defendant has the right to the effective assistance of legal counsel. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144; People v. Jones (2004) 33 Cal.4th 234, 244.) When presented with a Marsden motion, "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. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel. [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 604 (Smith); see also People v. Clark (2011) 52 Cal.4th 856, 912 (Clark).)
3. Analysis.
Appellant contends the trial court's failure to adequately address the breakdown of the attorney-client relationship and to appoint a new attorney deprived him of his right to counsel. He argues "there was no question in this case that there was a complete breakdown in the attorney-client relationship" as evidenced by "specific instances of failure to obtain discovery, failure to make motions, failure to contact necessary witnesses, and failure to communicate with him as promised. Appellant believed that counsel repeatedly lied to him and could not be trusted," and that this effectively left him without representation.
We find no abuse of discretion by the trial court in denying the four Marsden motions. The court conducted an appropriate in camera hearing on each of the motions. At each hearing, the court fully inquired of appellant and Nolan about the issues giving rise to the requests to replace counsel. Many of appellant's complaints related to disagreements about strategy and preparation for the preliminary hearing and trial. However, " ' "[t]actical disagreements between the defendant and his attorney do not . . . constitute an 'irreconcilable conflict' " ' unless they portend a complete breakdown in the attorney-client relationship. (People v. Jackson (2009) 45 Cal.4th 662, 688; see People v. Freeman (1994) 8 Cal.4th 450, 481 [defendant's distrust of counsel who suggested he plead guilty did not state an adequate basis for substitution of counsel].)" (Clark, supra, 52 Cal.4th at p. 912.)
Appellant's other complaints related to communication between Nolan on one hand, and appellant, his family, and certain of his witnesses on the other. Each time, the court found that Nolan was providing competent representation and could and would continue to do so despite the strained relationship with appellant. "A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel. . . ." (People v. Crandell (1988) 46 Cal.3d 833, 860.) In light of appellant's repeated attempts to replace Nolan, the trial court could reasonably find that any efforts to resolve his disagreements with her were insufficient. Moreover, appellant's repeated statements that he would refuse to work with her, as would family members and witnesses, strongly suggest that any breakdown in his relationship with counsel was largely attributable to his own attitude and refusal to cooperate. (People v. Michaels (2002) 28 Cal.4th 486, 523 [defendant cannot compel substitution of counsel simply by refusing to cooperate].)
We also note that each successive request for substitution counsel was based largely on points raised in previous Marsden hearings. The court was entitled to credit Nolan's assertions that she was keeping appellant informed regarding defense strategy, was not ignoring him, and wanted to communicate with him. (People v. Abilez (2007) 41 Cal.4th 472, 488.) After permitting appellant to fully express his complaints with counsel, inquiring into them, and evaluating them against counsel's explanations and, in the case at least of the two Marsden motions brought during trial, the court's own observations of appellant's in-court communication with his attorney, the court reasonably could find appellant's claimed inability to communicate with counsel was a conscious choice, and a contrived one. A defendant cannot simply refuse to cooperate with appointed counsel and thereby compel the court to remove that attorney. (People v. Michaels, supra, 28 Cal.4th at p. 523; Smith, supra, 30 Cal.4th at p. 606.)
Appellant relies on two California cases, but neither advances his argument. Both People v. Eastman (2007) 146 Cal.App.4th 688 and People v. Munoz (1974) 41 Cal.App.3d 62 involved failures of the trial court to hold Marsden hearings. In People v. Eastman, the defendant sought to withdraw his no contest plea, which he asserted had been the result of pressure from his attorney and the prosecutor who teamed up to falsely state that his mother would testify against him. This situation, according to the appellate court, suggested a "fundamental breakdown" in the attorney-client relationship which might require substitution of counsel. On remand, the trial court was ordered to hold a Marsden hearing. In People v. Munoz, supra, 41 Cal.App.3d 62, the defendant accused his attorney of not wanting to defend him; he said the attorney told him he was guilty and did not have "a chance." In response to this accusation, counsel remained silent and the court conducted no inquiry. The appellate court reversed the judgment. (Id. at p. 67.)
Our Supreme Court recently considered a case involving a defendant who claimed the trial court erred in denying his three Marsden motions. (Clark, supra, 52 Cal.4th at p. 912.) The trial court in Clark allowed the defendant to fully express his concerns, which included a breakdown in communication, disagreement over how to conduct the defense, and concern that his attorney would not fight for him because she had urged him to accept a plea bargain. The Supreme Court found no irreconcilable conflict because some of the issues were tactical decisions, the trial court was entitled to credit counsel's explanations of her efforts, and the defendant's own "attitude and refusal to cooperate" were largely responsible for the strained relationship. (Id. at pp. 912-913.) Similarly here, the trial court held several Marsden motions, allowed appellant to fully express his concerns, and did not abuse its discretion in denying the motions. On this record, the trial court could reasonably conclude that the conflict between appellant and his counsel was not irreconcilable. E. Cumulative Error.
Appellant contends that the cumulative prejudice of the trial errors in this case requires reversal. Having found no prejudicial error or any errors that cumulatively result in prejudice, we reject this argument. (People v. McWhorter (2009) 47 Cal.4th 318, 377; People v. Hill (1998) 17 Cal.4th 800, 844.) F. Sentencing Credits.
Appellant's final argument is his claim that his credit for time served was miscalculated and that he is entitled to three additional days. The attorney general concedes the point.
Pursuant to section 2900.5, a defendant is entitled to credit for each day spent in custody prior to sentencing, provided that the custody is attributable to proceedings related to the same conduct for which the defendant has been convicted. (§ 2900.5, subds. (a), (b).) The sentencing court is required to calculate the total number of days to be credited and to record the credits on the abstract of judgment. (§ 2900.5, subd. (d).)
Here, the abstract of judgment recorded 899 days of credit for time served. Appellant was sentenced on August 21, 2009. On that date, the prosecutor stated that the sentencing report showed credits of two days, May 5, 2006, and December 19, 2006, and then continuous credit from March 6, 2007, to August 21, 2009. As appellant points out, this adds up to 902 days. We will order the abstract of judgment amended to correct this evidently clerical error.
IV. DISPOSITION
The abstract of judgment is ordered amended to reflect 902 days of actual presentence custody credits. In all other respects, the judgment in appeal No. A126023 is affirmed, as is the judgment in appeal No. A126883, involving a restitution order as to which, per appellant's opening brief to us, "no issues are raised."
Haerle, J. We concur: Kline, P.J. Lambden, J.