Opinion
G054518
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY NUNEZ, Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF4531) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals and Kimberly Menninger, Judges. Affirmed. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Anthony Nunez was convicted of making a criminal threat against Jane Adamo. On appeal, he contends: 1) There is insufficient evidence Adamo suffered sustained fear as a result of his threats; 2) the jury instruction on voluntary intoxication was too narrow; 3) defense counsel was ineffective for conceding appellant's guilt in closing argument; 4) he was not afforded a speedy trial; 5) the trial court mishandled his numerous requests for a new attorney; and 6) cumulative error compels reversal. Finding appellant's claims unmeritorious, we affirm the judgment.
FACTS
On the night of October 20, 2014, Adamo and Rodney Gifford were doing some after-hours maintenance work at a learning center in Fullerton. Around 11:00, they heard a loud noise in the lobby of the building, and Gifford went to investigate. He discovered appellant rummaging through a tool box in a room near the lobby. He asked appellant if he could help him with anything but received no response. Appellant simply walked into the lobby with a handful of tools, including a two-foot drill bit.
By that time, Adamo had arrived at the lobby as well. She asked appellant what he was doing there, and he said, "Just let me out." "How do I get out?" He then tried to exit the building through the double doors in the lobby, but because he only pushed on one of the doors they did not open. It wasn't until Gifford came over and pushed on the other door that he was able to exit the building.
Appellant didn't go far, however. After taking a few steps, he turned around and walked back toward the lobby. Adamo held the doors from the inside to prevent appellant from reentering the building. Appellant did not try to push the doors open, but he did start stabbing at them head-high with the drill bit he had taken. Although this chipped the glass in several places, it did not break the glass or prevent Adamo from keeping the doors closed.
Gifford called the police from the front desk in the lobby. As he was doing so, appellant continued stabbing at the door with the drill bit and repeatedly threatened to kill Adamo. In a loud and angry voice, he told her several times, "Come out or I am going to kill you," and "I am going to kill you, bitch." Fearing for her life, Adamo told appellant, "I don't know you. I have never seen you before. Why would you want to do anything to me? You need to leave because the police are coming."
Appellant did. As he was walking away, Adamo could see police lights in the area. It wasn't long before officers spotted appellant in the vicinity and took him into custody. Both Adamo and Gifford identified him in the field as the man they had encountered earlier. Adamo was still very nervous when she explained the incident to the police.
Appellant was charged with burglary and making a criminal threat. At trial, the defense presented testimony from a liquor store clerk who said appellant purchased four forty-ounce beers from him on the night in question. He said appellant also tried to buy more beer from him later that night, about two hours before the incident at the learning center, but he refused to sell him any because appellant was too drunk. In closing argument, defense counsel posited appellant initially entered the learning center to use the restroom, not to steal. Counsel also argued appellant was too drunk to form the requisite intent to commit burglary or convey a serious threat to Adamo. The jury found appellant not guilty of burglary but guilty of making a criminal threat. The trial court sentenced him to five years' probation on the condition he spend 360 days in jail.
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is insufficient evidence Adamo suffered sustained fear that would justify his conviction for making a criminal threat. We disagree.
The standard of review for assessing the sufficiency of the evidence to support a criminal conviction is "highly deferential." (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is to review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence of the defendant's guilt. (People v. Alexander (2010) 49 Cal.4th 846, 917.) In so doing, "'[w]e presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (Ibid., quoting People v. Guerra (2006) 37 Cal.4th 1067, 1129.) "'The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]'" (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
To prove the offense of making a criminal threat, the prosecution must establish five elements: 1) The defendant willfully threatened to commit a crime that would result in death or great bodily injury; 2) the defendant specifically intended the statement be understood as a threat and that it be communicated to the victim; 3) the threat was so clear, immediate and unconditional that it conveyed a serious intention and an immediate prospect of execution; 4) the threat caused the victim to be in "sustained fear" for his or her safety; and 5) the victim's fear was objectively reasonable under the circumstances presented. (Pen. Code, § 422, subd. (a).)
All further statutory references are to the Penal Code.
To be "sustained," the victim's fear must be more than just "momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Appellant contends this minimal threshold was not met here because there was no evidence Adamo's fear extended beyond the period of time he was stabbing the drill bit at the doors she was holding and threatening to kill her. However, "no minimum time period is required" to satisfy the sustained fear requirement. (Id. at p. 1156, fn. 6.) Rather, the evidence need only show the victim's fear was "'not insubstantial.'" (Ibid., quoting People v. Edwards (1991) 54 Cal.3d 787, 823.)
Appellant's threatening conduct in this case was particularly egregious. After taking a large drill bit from the building Adamo was working at and briefly exiting the building, appellant returned with a vengeance. He didn't put the drill bit down and try to open the doors and explain himself to Adamo. Instead, he flew into a rage and began stabbing the doors with the drill bit. Pieces of chipped glass were flying everywhere as he pounded the drill bit into the doors at the very spot Adamo's head was located on the other side of the glass. And, of course, during this time he repeatedly threatened to kill Adamo, which quite reasonably caused her to fear for her life. It was only after Adamo told appellant the police were coming that he finally relented and walked away. Even though the attack could not have lasted more than a minute or so, if that, we must remember, "When one believes he is about to die, a minute is longer than 'momentary, fleeting, or transitory.' [Citation.]" (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.)
Considering the facts in favor of the judgment below, as we are required to do, there is substantial evidence to support the jury's finding Adamo suffered sustained fear as a result of the threats appellant leveled against her. (Compare In re Ricky T. (2001) 87 Cal.App.4th 1132 [teacher was not placed in sustained fear by student's threat, which was made in a pique of anger and unaccompanied by any show of force or violence].)
Instructional Issue
Appellant claims the combined effect of two standard jury instructions undermined his right to a fair trial. The claim is not well taken.
The first instruction pertained to the issue of intoxication. Pursuant to CALCRIM No. 3426, the court told the jury, "You may consider evidence, if any, of the defendant's voluntary intoxication only in deciding whether the defendant acted with the specific intent or mental state required by the crimes charged in counts 1 and 2. [¶] . . . [¶] You may not consider evidence of voluntary intoxication for any other purpose."
In addition, the court instructed the jury per CALCRIM No. 372, "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
Both instructions were generally applicable to appellant's case. However, appellant claims that by limiting the jury's consideration of voluntary intoxication to the issue of specific intent, CALCRIM No. 3426 prejudicially precluded the jury from considering whether his decision to flee the scene was driven by his alcohol consumption, as opposed to a desire to avoid apprehension for doing something he thought was wrong.
Appellant's claim is based on the reasoning of People v. Wiidanen (2011) 201 Cal.App.4th 526, which found the trial court erred in failing to allow the jury to consider the defendant's intoxication in determining whether his false statements evidenced consciousness of guilt. (Id. at p. 533.) However, appellant forfeited his instructional claim by failing to raise it below. (People v. Geier (2007) 41 Cal.4th 555, 579.) And while he contends his attorney was ineffective for not doing so, that contention fails for lack of prejudice. (See generally People v. Riel (2000) 22 Cal.4th 1153, 1175 [a defendant alleging ineffective assistance of counsel must not only prove his attorney performed deficiently but that he would have achieved a better result absent the deficiency].)
Appellant did present evidence from a liquor store clerk that he was drunk about two hours before the incident in question took place. But Adamo, Gifford and the arresting officer all testified they did not smell alcohol on appellant when they encountered him that evening. Moreover, the evidence indisputably established appellant left the scene immediately after Adamo informed him the police were coming. This indicates his departure was not a matter of a drunk wandering off but rather the result of a conscious decision to avoid arrest. That being the case, the subject instructions are not cause for reversal. Even if the instruction on voluntary intoxication had been worded to appellant's liking, it is not reasonably probable a jury would have concluded his intoxication just happened to "kick in" at the moment the police were mentioned. He would not have obtained a more favorable result with a different instruction.
Closing Argument
Appellant also contends his attorney violated his Sixth Amendment right to counsel by effectively conceding his guilt in closing argument. (See McCoy v. Louisiana (2018) ___ U.S. ___ [while defense counsel has control over most tactical decisions in a criminal case, he may not concede guilt over his client's objection].) The record does not bear this out.
The dispute centers on the manner in which defense counsel interpreted Adamo's testimony about the wording of appellant's threats. On direct examination, Adamo testified appellant repeatedly threatened to kill her while he was stabbing the drill bit into the doors she was holding shut. She said appellant told her both, "Come out or I am going to kill you," and "I am going to kill you, bitch." When asked on cross-examination if appellant said, "Come out and I will kill you," or "if you come out, I will kill you," Adamo said she could not remember.
In closing argument, defense counsel contended appellant was not guilty of making a criminal threat for two distinct reasons. First, appellant did not intend his statements to be understood as a threat or that they be communicated to Adamo. Rather, in his intoxicated state, appellant was simply venting anger at the doors Adamo was holding shut because he had a hard time opening them when he first tried to exit the building. In other words, appellant's wrath was aimed at the doors, not Adamo.
Alternatively, defense counsel argued appellant was not guilty because there was evidence his threat to Adamo was conditional. Relying on the fact the record was somewhat ambiguous as to what appellant actually said to Adamo, defense counsel posited that if he told her straight up that he was going to kill her, that would be a crime. But if he qualified his statement by saying something like, "If you come out here, I will kill you," that would not be a crime.
Appellant contends this argument was tantamount to a concession of guilt because there was evidence he made the former, unconditional statement. However, relying on the rule that a criminal defendant is entitled to the benefit of the doubt given two reasonable interpretations of the evidence, defense counsel urged the jury to find appellant actually made the latter, conditional statement to Adamo. In so arguing, defense counsel was maintaining his client's innocence, not conceding his guilt.
Still, appellant contends his attorney was wrong on the law by arguing a conditional threat is not a crime. In his view, the argument was flawed because a statement can be a threat even if it is phrased in a conditional fashion. (People v. Bolin (1998) 18 Cal.4th 297, 338-340.) However, the use of conditional language can immunize a speaker from criminal liability in some situations. (See People v. Brooks (1994) 26 Cal.App.4th 142, 149 [recognizing that "[c]onditional threats are true threats [only] if their context reasonably conveys to the victim that they are intended" as such].) In emphasizing the evidence showing appellant's threat to Adamo was conditional, defense counsel was trying to convince the jury the threat was not intended as, nor did it actually convey, a true criminal threat. This was a reasonable defense strategy. It did not amount to a concession of guilt in violation of appellant's Sixth Amendment rights.
Speedy Trial
Appellant was arrested in October 2014 and tried in August 2016. He contends this 22-month delay violated his state and federal speedy trial rights, but we cannot agree.
Appellant was formally charged with burglary and making a criminal threat on October 22. At that time, appellant was also facing charges on another case in which he allegedly drove under the influence (DUI) and violated his probation. In both cases, appellant was represented by public defender Randall Bethune. However, because appellant posted bail he remained out of custody throughout the pretrial proceedings described below.
We will recount the proceedings in considerable detail because they relate to both appellant's speedy trial claim and his Marsden claim, which is discussed in the next section of the opinion.
Appellant's preliminary hearing was originally scheduled for November 3, 2014, but it was not held until August 17, 2015. During that nine-month period, appellant waived his right to a timely preliminary hearing and agreed to multiple continuances. Only once, on August 10, did he object to the hearing being continued.
Following the preliminary hearing, trial was set for October 14, 2015. However, because defense counsel had a calendaring conflict that day, the case was trailed to the following day. That day, October 15, marked the first of many Marsden hearings held in this case. (See People v. Marsden (1970) 2 Cal.3d 118 [upon request trial courts must give indigent defendants the opportunity to voice complaints about their attorney and appoint new counsel if they can show counsel is not representing them effectively or an irreconcilable conflict has developed between them].)
Appellant's attorney at the time of the hearing was public defender April Gilbert, who took over for Bethune shortly after the preliminary hearing. In seeking to remove Gilbert, appellant complained her work was subpar and she was hard to get hold of. He also faulted Gilbert for dragging out the case, saying he wanted to commence trial without further delay. In response, Gilbert, a seasoned criminal defense attorney, detailed her work on the case, as well as her numerous interactions with appellant. She said the case had been delayed due to various discovery issues, and because those issues were still ongoing, she was not ready for trial. Ultimately, the court denied appellant's request for a new attorney and continued his trial five days, to October 20, 2015. Unhappy with that result, appellant said he was going to keep making Marsden motions until he got a new attorney. He wasn't bluffing.
On the 20th, Gilbert requested a continuance to facilitate further discovery. Over appellant's objection, the court found good cause and continued trial until November 9, 2015. At that point, appellant requested and received another Marsden hearing. He faulted Gilbert for not doing enough on his case and avoiding his calls. And he reasserted his desire to start trial post haste, saying the delays were taking a toll on his family life and employment prospects. While complaining about Gilbert's lack of effort on the case, appellant said he just wanted to get it over with so he could get on with his life. Gilbert then spoke at length regarding the status of certain discovery items and the efforts she had been making to keep appellant apprised of what was going on in the case. While she realized appellant was no longer willing to waive time, she said she wasn't ready to try the case.
Following a short recess, David Dziejowski, Gilbert's supervisor at the public defender's office, addressed the court and said he was familiar with appellant's case and the concerns he had about Gilbert. He also said he was open to the prospect of providing appellant with a new attorney from his office. In that regard, Dziejowski told the court, "we have a staff of 200-some attorneys, and I don't think it is a conflict with our office so much as a breakdown in communication between [Gilbert] and [appellant]."
The court agreed. Even though it did not believe there was an irreconcilable conflict between Gilbert and appellant, it felt their relationship was "unhealthy" due to personal differences. Therefore, while it denied appellant's Marsden motion to the extent he was seeking to relieve the entire public defender's office, it recommended his case be assigned to another attorney in that office.
Sensing appellant was "a little bit difficult to deal with" and "almost irrational" in terms of his expectations with Gilbert, the court also encouraged appellant to be patient with his new attorney. It told him that because public defenders typically have a heavy case load, it is challenging for them to deal with every client on an immediate basis. So even though appellant wanted his attorney to handle his case with greater urgency, it was important for him to keep in mind that public defenders have a lot of clients to deal with.
A week later, on October 28, 2015, Randall Bethune, appellant's original attorney, was substituted in as defense counsel. At a readiness conference the following week, Bethune said he would be prepared to start trial as scheduled on November 9. The prosecutor said he would be answering ready sometime in the trailing period. No objection was voiced.
On the 9th, Bethune announced he was moving to dismiss appellant's DUI case under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) based on the state's failure to preserve exculpatory evidence. To accommodate the schedule of a witness needed for the motion, Bethune requested a continuance to November 12, 2015. Over appellant's objection, the court found good cause and continued the trial to that date.
On November 12, both sides answered ready for trial and began litigating the Trombetta motion. However, since they were unable to finish the motion that day, the court continued the matter to November 16. When court convened that day, appellant made his third Marsden motion and registered multiple grievances against Bethune. Among other things, appellant felt Bethune did not believe in his case, was not handling the Trombetta motion effectively, and was generally inattentive to his concerns. Appellant also expressed frustration his trial was constantly being delayed. On the one hand, he said there were still many things he wanted Bethune to do before trial - such as subpoena records and file additional motions - and on the other hand, he claimed the delays were wreaking havoc on his personal and professional life.
In responding to appellant's allegations, Bethune explained his substantive work on the case and detailed his efforts to accommodate appellant's needs, which were many. He said that, despite some disagreements about tactics, he and appellant had been able to work together satisfactorily. As the hearing wore on, appellant begrudgingly concurred in this assessment. After the court denied his request for a new attorney, he admitted Bethune had done a lot for him in terms of handling his case.
During the course of the hearing, the trial court made several observations about appellant that may explain why his relationship with his attorneys was less than ideal. Among other things, the court noted appellant liked to talk a lot, but he "doesn't listen at all"; he tended to "fly off for no reason"; and he was rude and confrontational. Despite these traits, the trial court was exceedingly patient in terms of hearing out all of appellant's numerous complaints.
Following the denial of appellant's Marsden motion, Bethune requested a continuance to secure additional witnesses for the Trombetta motion. When appellant objected to the request, the court told him he was not required to waive time for trial. However, if he was unwilling to do so, Bethune would be unable to litigate the Trombetta motion effectively. Understanding that, appellant agreed to continue the motion hearing on this and several subsequent occasions.
The motion was scheduled to be heard on May 20, 2016, but on that day, the court put the matter over to May 27 because one of the witnesses Bethune had subpoenaed was not available. On the 27th, the witness was still not available, so the court continued the proceedings for one week. That prompted appellant to request another Marsden hearing, his fourth.
Over the course of two days, May 27 and June 3, 2016, the court listened patiently as appellant railed against Bethune. Appellant assailed Bethune's commitment to his case, as well as the manner in which he had been communicating with him about certain matters. And as he did before, he criticized Bethune both for failing to do more to help his cause, and not moving things along at a faster pace. Appellant said it was costing him a lot of money to be out on bail and bemoaned the fact he did not have the funds to hire a private attorney.
The court told appellant it is not uncommon for criminal cases to take two or three years to go to trial, given the large amount of cases in the system and the limited number of public defenders who are available to handle them. However, the court assured appellant that Bethune was not slacking off, telling him, "I know it seems counterintuitive for you. . . . [But] [t]aking longer doesn't mean [Bethune is] doing less. It actually means he's doing more on your case." All things considered, the court felt Bethune was working diligently and effectively for appellant and that the case was proceeding at due speed. It therefore denied his request for a new attorney.
That same day, the parties finished the evidentiary phase of the Trombetta motion, and the court denied the motion. The discussion then turned to picking a new trial date. Refusing to waive time, appellant said he wanted the trial to begin right away, but at Bethune's request, the court set it for July 19, 2016. Appellant then made another Marsden motion, during which he rehashed his many complaints about Bethune. While the court recognized appellant's relationship with Bethune was somewhat strained, it did not believe it was hampering Bethune's ability to represent appellant effectively. In fact, the court felt Bethune had been doing an exceptional job in terms of handling appellant's case. It therefore denied his Marsden motion.
On July 19, Bethune answered ready for trial. However, at the prosecutor's request, the court trailed the matter for a week, to the 26th. That day, as jury selection was about to commence, appellant informed the court he was attempting to retain private counsel. He said he hoped to have a new attorney on board by August 1, 2016 and agreed to continue trial until then. He also requested and received yet another Marsden hearing. At the hearing, appellant registered his familiar complaints about Bethune's performance. He also faulted Bethune for repeatedly continuing the case over his objection and failing to seek a dismissal on speedy trial grounds. Unmoved by appellant's claims, the court denied his request for a new attorney.
On August 1, 2016, appellant informed the court he was unable to retain private counsel, due to insufficient funds. The trial commenced nine days later, and on August 16, the jury returned its verdict.
The right to a speedy trial is enshrined in both the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1) "Because '[t]he speedy-trial right is "amorphous," "slippery," and 'necessarily relative,"' the high court in [Barker v. Wingo (1972) 407 U.S. 514, 530 (Barker)] 'refused to "quantif[y]" the right "into a specified number of days or months" or to hinge the right on a defendant's explicit request for a speedy trial.' [Citation.] Rather, to determine whether a speedy trial violation has occurred [under the federal Constitution], Barker established a balancing test consisting of 'four separate enquiries: whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result.' [Citation.] None of these four factors is 'either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.' [Citation.] The burden of demonstrating a speedy trial violation under Barker's multifactor test lies with the defendant. [Citation.]" (People v. Williams (2013) 58 Cal.4th 197, 233.)
The defendant also has the burden of proof when alleging a violation of his state speedy trial rights under the California Constitution and section 1382. No relief is available unless demonstrative prejudice has been shown. (People v. Martinez (2000) 22 Cal.4th 750, 769.)
Under that section, if an accused is not brought to trial within the prescribed period, the court must dismiss the case "unless good cause to the contrary is shown . . . ." (§ 1382, subd. (a).)
Appellant contends, "The Barker factors - length of delay, assertion of speedy trial rights, responsibility for the delay, and prejudice - favor a finding [his] constitutional speedy trial rights were violated." We do not see it that way.
The total length of pretrial delay in this case was nearly two years, which is fairly long. However, appellant consented to multiple continuances at the outset of the proceedings; it was not until August 10, 2015 - roughly 10 months into the case - that he asserted his right to a speedy trial. That fact alone takes some of the steam out of appellant's claim. (See People v. Landau (2013) 214 Cal.App.4th 1, 28 [rejecting speedy trial claim because "the length of the delay to which appellant did not consent was relatively short.")
Still, another year passed from the time appellant asserted his speedy trial rights until his trial began, and during that time, he made it clear to everyone he was upset with the pace of the proceedings. While criticizing his attorneys for not doing more on his case, appellant repeatedly objected to what he perceived to be unnecessary delays in bringing his case to trial.
That raises the question of who was to blame for the multiple delays that occurred after appellant's preliminary hearing. In appellant's view, the state was wholly responsible for those delays. And by the state, he means not just the court and the prosecution, but also his own attorney. Appellant asserts all three of these entities conspired to violate his speedy trial rights.
Appellant is correct the prosecution was not prepared to proceed on some occasions, which delayed the proceedings 22 days by his account, and the court perhaps could have cracked the whip a little harder in an attempt to expedite matters. (See People v. Williams, supra, 58 Cal.4th at p. 251 ["trial courts must be vigilant in protecting the interests of the defendant, the prosecution, and the public in having a speedy trial"].) However, many of the continuances the court granted were for good cause in that they enabled defense counsel to obtain discovery, subpoena witnesses and litigate the Trombetta motion, which was potentially dispositive of the DUI case. (See People v. Johnson (1980) 26 Cal.3d 557, 570 [noting courts have found good cause when the delay was for the defendant's benefit].) We are not convinced the prosecution or the trial court contributed to the pretrial delay in any significant way.
In assessing fault for the delay, appellant also points the finger at defense counsel. In fact, he claims his own attorneys were responsible for most of the pretrial delay that occurred in the case. Even though delays occasioned by appointed counsel "are ordinary attributable to the defendants they represent" (Vermont v. Brillon (2009) 556 U.S. 81, 85), appellant contends the dilatory actions of his attorneys "must be imputed to the state due to systematic problems" at the public defender's office. (See ibid. [the state may bear responsibility for pretrial delay if there is a breakdown in the public defender system].) However, in order to impute the delays of appointed counsel to the state there must be affirmative facts in the record that show the delays were caused by institutional problems at the public defender's office as opposed to the specific actions of any particular attorney. (People v. Williams, supra, 58 Cal.4th at p. 248.) No such facts exist in this case.
As appellant notes, the trial court described him as a "victim of circumstance" insofar as he had to rely on the public defender system for representation. However, the court did not suggest that was a criticism of the Orange County Public Defender's Office. It simply wanted appellant to realize that although there are over 200 attorneys in that office, those "lawyers are busy. They have got a lot of clients. And it is a challenge for [them] to deal fairly and competently and professionally with every client and on an immediate basis." Moreover, the court was quick to add that this particular challenge was not unique to public defenders. Drawing on his own experience as a private practitioner, the judge said there were many times when he found it difficult to juggle the needs of his many clients when he was in private practice.
Later in the proceedings, the judge also told appellant, "I know it seems strange to anybody outside the system, but these cases do take approximately two-to-three years to go to trial. [¶] I would love to make that go faster. . . . But unfortunately that is not the way most cases run. Part of that is because the lawyers who are appointed, like yours, have a large case load." The court also explained that when a defense attorney is doing his job effectively, it can often necessitate delays that leaves the client feeling anxious and neglected. However, those delays benefit the defendant in the long run because they allow defense counsel to explore the facts and develop potential defenses to the charges.
When asked by the court how many cases he was currently handling, Bethune said 24.
These remarks speak to the factors and considerations bearing on the speed with which a criminal case is brought to trial. While they reflect the reality that public defenders are typically very busy, they do not suggest the pretrial delay in this case resulted from "unreasonable resource constraints . . . or other systemic problems" at the public defender's office. (People v. Williams, supra, 58 Cal.4th at p. 249.) Consequently, the delay attributable to appellant's attorneys will be imputed to him, not the state, for purposes of our analysis. (Id. at pp. 241-249.)
The recent case of People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36 exemplifies what it takes to prove a speedy trial violation based on a systemic breakdown in the public defender's office. In that case, there was an extensive evidentiary record showing the pretrial proceedings were bogged down due to massive budget cuts, attorney transfers and a shortage of personnel at the public defender's office. The record in our case is devoid of such evidence, and we see exemplary work conducted by this office every day.
The final factor in the mix is the degree to which appellant was prejudiced by virtue of the pretrial delay. In Barker, the high court stated prejudice "should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect[,]" including the desire "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown." (Barker, supra, 407 U.S. at p. 532.)
Appellant was not incarcerated before trial, but he clearly experienced anxiety over the pretrial delay that occurred in his case. Judging by his remarks at the Marsden hearings, the delays negatively impacted his family life, financial situation, and employment prospects. However, as far as the most important aspect of prejudice is concerned, we are doubtful the delays hampered his defense in any meaningful fashion.
In arguing otherwise, appellant points out the liquor store clerk who testified for him said he had trouble remembering some of the details of their encounters on the night in question. However, the clerk was able to remember exactly how much alcohol appellant purchased from him when he first came into his store that evening (four, forty-ounce beers), and he was able to remember appellant was "very drunk" when he returned later that night, about two hours before the alleged crimes occurred. In fact, the clerk testified appellant was so intoxicated at that time he refused to sell him any more alcohol. This may explain why the jury acquitted appellant of the burglary charge. Since the clerk was able to provide unequivocal testimony on the key elements of his intoxication defense, we do not believe the pretrial delay hampered appellant's ability to use him as an effective, credible witness.
Appellant also contends the pretrial delay hurt his case because it prevented him from establishing exactly when Gifford called the police during the ordeal at the learning center. Gifford initially testified he called the police when appellant was threatening Adamo and attacking the doors she was holding shut. However, he subsequently stated he could not remember exactly when he made the call and may not have done so until after appellant left the scene. Appellant contends the timing of the 911 call was important because it could have affected the jury's perception of how long Adamo was in fear as a result of his actions.
But the timing of the call was much less important to that issue than the timing of the police officers' arrival at the scene, which according to Adamo, was not until appellant relented his attack and began walking away. Until this time, it is highly unlikely Adamo's fears were assuaged, so the exact timing of Gifford's 911 call was largely unimportant. Regardless of when he called the police, the timing of that call would not have affected the jury's perception of Adamo's predicament and how long she feared for her safety. Therefore, even if the pretrial delay contributed to Gifford's inability to remember when he made the call, appellant suffered no resulting prejudice.
Considering all the relevant factors, we are convinced there was no violation of appellant's speedy trial rights. Much of the pretrial delay was consented to or attributable to appellant, and there is nothing in the record to suggest the delay impacted his ability to defend against the charges or the eventual outcome of the case. This lack of prejudice not only dooms appellant's federal speedy trial claim, it is also fatal to his claim the pretrial delay infringed his speedy trial rights under state law. (People v. Martinez, supra, 22 Cal.4th at p. 769 [a defendant challenging his conviction on state speedy trial grounds must show the delay caused actual prejudice to his case].) There is simply no basis to provide appellant relief under the state or federal framework.
Appellant also claims his attorneys were ineffective for failing to move to dismiss his case on speedy trial grounds. The claim is based on the belief there was a systemic breakdown in the public defender's office, warranting dismissal. In light of our finding there was no such breakdown, the claim necessarily fails. (See People v. Thompson (2010) 49 Cal.4th 79, 122 [counsel does not render ineffective assistance by failing to make futile motions].)
Marsden Claim
Appellant also claims the trial court mishandled his requests for a new attorney. Not so.
The facts pertaining to appellant's Marsden claim are set forth in the preceding section. They show appellant was afforded six separate Marsden hearings over the course of the case, and after the second hearing, he was provided a new attorney from the public defender's office. Nonetheless, appellant contends his Sixth Amendment right to counsel was violated because the court failed to appoint him an attorney from outside the public defender's office.
Appellant's argument is premised on the assumption there were institutional problems at the public defender's officer that made it impossible for him to receive a timely trial. However, as we have explained above, the record does not support this claim, and we are convinced appellant received a fair and speedy trial. We discern no abuse of the discretion in the manner in which the trial court handled his numerous Marsden motions.
Cumulative Error
Lastly, appellant contends that if none of the errors he has identified are sufficient to warrant reversal in and of themselves, the judgment should be reversed due to the cumulative effect of those errors. However, none of appellant's assignments of error have proven to have merit. We therefore reject his claim of cumulative error.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.