Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF087852B
HULL, J.This is the second time this case has been before us. As described in our previous opinion, Kevin and Sabrina Dahnke were brutally shot and killed in their home. (People v. Jones (Aug. 31, 2007, C048432) [nonpub. opn.] (Jones I).) A jury convicted defendant Christopher Howard Jones of two counts of murder as well as robbery and burglary, and found true charged firearm enhancements and special circumstances. The trial court sentenced defendant to an aggregate sentence of 56 years to life plus two consecutive life sentences without the possibility of parole.
In Jones I, we concluded that the trial court failed to conduct the inquiry required under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). (Jones I, pp. 6-20.) We therefore reversed the judgment with directions to the trial court to conduct a hearing to give defendant a full opportunity to explain why he requested the appointment of new counsel. (Jones I, p. 40.) If the court determined that defendant demonstrated good cause for appointment of new counsel under Marsden, the court was to appoint new counsel and set the case for retrial. (Jones, at p. 40.) However, because we rejected defendant’s other claims of error, we directed that if the court concluded that good cause was not shown, the court was to reinstate the judgment, striking an erroneously ordered parole revocation fine. (Ibid.)
The trial court held a Marsden hearing and concluded that defendant had not demonstrated good cause for the appointment of new counsel. The trial court therefore reinstated the judgment in conformity with our directions.
In this appeal, defendant contends that the court erred in denying his Marsden motion. He also asserts that remand was an inadequate remedy and reversal was required. We affirm the judgment.
Discussion
Given the issues raised on appeal, we dispense with a description of the underlying offenses and instead incorporate relevant facts in our discussion.
I
Denial of Marsden Motion
Defendant contends that the trial court abused its discretion in denying his Marsden motion. We disagree.
“Marsden motions are subject to the following well-established rules. ‘“‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ [Citations.]”’ [Citation.] Denials of Marsden motions are reviewed under an abuse of discretion standard. [Citation.] Denial ‘is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel. [Citations.]’” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
In his Marsden hearing, defendant asserted that his attorney, Mr. Shaver, did not thoroughly investigate his case. On appeal, defendant focuses on two of these alleged shortcomings, specifically, that his attorney failed to investigate statements by inmates Michael Simons and Latroy Taylor.
In one of these claims, defendant asserted that he “was out in the county jail with an inmate by the name of Michael Simons. Michael Simons stated that Mr. Magana [co-defendant] sent a private investigator to interview him. [¶] The reason being was to have Mr. Simons testify falsely against me. Mr. Simons brought this to my attention. And was willing to testify to what was asked of him by this investigator. This is a pattern by Mr. Magana. It should have been brought up during trial.”
In response, Attorney Shaver explained: “What I recall is Mr. Simons had told [defendant] that someone working with Joel Magana or his attorney had come to talk to him about what [defendant] felt was false testimony, and that was that Michael Simons told [defendant] that he had been offered money if he would testify that... [defendant] had confessed to him to the shooting.”
He continued, “Now the problem with that is that this is someone other than Magana. [¶] Magana had not confessed to Michael Simons about doing the shooting himself. So it’s not--it’s hard to get--to track that back to Joel Magana. It’s not a typical confession. [¶] Now I felt at the time that I had a much better issue regarding Joel’s manipulation of the facts, presenting false testimony and so forth. [¶] I had police officers under [s]ubpoena about an incident in Galt where Joel Magana allegedly had shot at someone out of a car while he drove, and then when confronted by the police officers about that, had tried to blame it on the passenger in the car, which was almost an identical situation that I thought [defendant] faced, that... [defendant] was the passenger in the car. [¶] [Defendant] had no part in planning or setting up this shooting, this preempted strike against the deceased, but Magana was blaming [defendant] for it, so I felt that that... was a real good credible situation showing that Magana was not to be trusted. [¶] He had done the same kind of thing before and tried to blame something else.”
Attorney Shaver continued, “So I tried to cross-examine him about that, but I was prevented because of Evidence Code [section] 352.... [¶] So frankly, I didn’t feel that I’d be allowed to bring in Michael Simons either, and I didn’t feel that it was as reliable as this other matter where I had actual police officers that would testify as to what Joel Magana had told them and how he talked himself out of that conviction.”
Counsel explained the extensive investigation he had personally undertaken, as well as the work done by his investigator. In response to further questioning by the court, Attorney Shaver said neither he nor his investigator spoke to Michael Simons because he “felt it was too remote... there was an investigator, I don’t know who that was who had talked to him. It wasn’t Joel Magana apparently, and there was no confession from--it wasn’t as though Magana went to Michael Simons and said, hey I shot these people, but I want you [to] testify that [defendant] did.” Counsel thought this story was “flaky” and believed he had “something even better with the incident in Galt.”
He added, “[I]n retrospect I wish I had followed up, but I thought it was too remote. There was no confession there, there’s potentially a statement against penal interest, but on seeing this guy on the stand, now this is--I don’t know if this was in my mind then because I don’t remember what was going through my mind, but Mr. Magana could easily have gotten on the stand and said, no, I just wanted him to tell the truth. And, in fact, he came to me telling me the same thing about [defendant].” In other words, he explained, “Mr. Magana could have got[ten] on the stand after the guy testified and said--no, this guy contacted me and wanted me--told me that [defendant] was going to hire him to say that I confessed to him, that I confessed.” Counsel noted that he did not think Simons was “all that credible” but he wished he “had followed through more on it.” He reiterated his belief that he had a “much better and less flaky incident, where I had police officers who... would talk about what Magana himself, not a third person, not an investigator, had told him and had done in a manner that I thought was strikingly similar.”
Defendant’s second claim to support his Marsden motion involved another inmate, Latroy Taylor. Magana had testified at trial that he heard that Taylor was in a cell near defendant and that Taylor heard defendant bragging and laughing at Magana. Magana admitted that he had written a letter to Taylor negotiating to pay him $1,300 to testify.
Defendant asserted that his attorney should have subpoenaed “the log sheets on Latroy Taylor[’s] cell movements because [the] record would have showed it was physically impossible for me to have talked to Latroy Taylor about my case. [¶] The fact is that Taylor and Magana’s scheme was fabricated and should have been brought into the evidence for the eyes of the jury. It shows a pattern by Mr. Magana, which established character which is crucial toward one[’s] credibility.”
Attorney Shaver responded, “I don’t recall anything about Latroy Taylor. What I do recall is a jailhouse snitch, a possible jailhouse snitch. I think that was Michael Simons. I don’t remember anything about Latroy Taylor....” He added, “I know I’ve represented someone by the name of Latroya Taylor, but I don’t recall--and the name is familiar to me. I just don’t recall that at all. But it’s been four years. I’m not saying that it didn’t come to my attention. I just don’t recall it at all.”
In denying defendant’s Marsden motion, the trial court reviewed defendant’s claims about Simons and Taylor and Attorney Shaver’s responses, and noted that the critical question was whether defendant’s right to counsel was substantially impaired. The court concluded that defendant had not met his burden of establishing such impairment, stating: “I don’t think that Mr. Shaver failed to do what he needed to do here, and he testified, he stated he had worked on this for about 18 months, and he put a lot of time in on the case. [¶] He said he did have an investigator, but most of the investigation he did himself, for instance, he didn’t want the witness talking to the defendant because he was afraid that notes might fall into the hands of a third party.
“I think that Mr. Shaver did investigate this case. I think that he did all that he should have done. When I say all that he should have done, almost all that he should have done, and that small area, that he did not do, I don’t think that that is enough to say that there was substantial impairment.
“So I am going to make a finding that had I conducted this, the rest of this inquiry that we went through today at the time of the original Marsden motion, I would not have granted it, and I think under the [s]tate of the law, the law that we have on Marsden, would not have required that Mr. Shaver be relieved.
“So once again, I’m going to deny the Marsden motion.”
The trial court’s ruling was well within its discretion. Counsel explained that he had decided to challenge Magana’s credibility and pattern of blaming others for offenses he had committed by calling police officers to testify about another incident. The fact that the court ultimately excluded this testimony under Evidence Code section 352 does not reflect a lack of investigation on counsel’s part. Counsel did not think Simons’s story was credible and he described how he thought Magana might have responded to that testimony. Although Attorney Shaver did not remember hearing about inmate Latroy Taylor, the explanation he offered was generally applicable: he believed that police officer testimony would provide more effective impeachment evidence than testimony from an inmate. Moreover, defendant himself was less than clear about how the log records for Taylor’s cell housing would have shed light on Magana’s credibility or otherwise established that Taylor could not have somewhere heard defendant bragging about the crimes. Counsel in fact sought to impeach Magana at trial by questioning him about his communications with Taylor.
While it is true that counsel did not contact Taylor or Simons, counsel is not required to investigate all possible witnesses. (People v. Barnett, supra, 17 Cal.4th at p. 1111.) The trial court acted well within its discretion in concluding that counsel had conducted an appropriate investigation, and that defendant had not established that his right to counsel was substantially impaired. The court did not err in denying defendant’s Marsden motion and reinstating the judgment against him.
II
Adequacy of Remand
Defendant contends that a conditional remand for a Marsden hearing was an inadequate remedy and that his conviction should simply have been reversed. Defendant made the same argument in his first appeal and we rejected it then, noting that the California Supreme Court had expressed its preference for a conditional remand in the case of alleged Marsden error. (Jones I, pp. 18-20; see People v. Hall (1983) 35 Cal.3d 161, 170, citing People v. Minor (1980) 104 Cal.App.3d 194, 199-200.) Defendant has no basis for reasserting an argument rejected in his earlier appeal. In an apparent effort to avoid this procedural hurdle, defendant cites recent case law involving the adequacy of remands to determine claims that peremptory challenges were racially motivated. (Snyder v. Louisiana (2008) 552 U.S. 472 [170 L.Ed.2d 175, 186].) Unlike Snyder, defendant’s case did not involve a decade-old time lag, nor does it suffer from the same evidentiary difficulties. We decline to revisit the question of appropriate remedy. As we made clear in our earlier decision, the California Supreme Court favors the use of conditional remands to determine Marsden claims (Hall, at p. 170), and that remedy was appropriate here.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P. J., SIMS, J.