Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA163991, Robert Perry, Judge.
Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
This is the third time we have considered an appeal involving the crime at issue in this case. Jose Joe Quesada, whose previous conviction on charges of conspiracy to commit murder and first degree murder was overturned by this court, appeals from the judgment entered after the jury on retrial again found him guilty on both charges. The jury also found true the special allegations the murder was committed for financial gain and while lying in wait. Quesada was sentenced to life in prison without the possibility of parole. We affirm.
See People v. Cleland (May 27, 2003, B143757) (review den. and opn. ordered nonpub. Aug. 27, 2003, S117252) (Cleland I) [reversing convictions of Rebecca Cleland and Jose Quesada and affirming conviction of Alvaro Quesada]; People v. Cleland (July 21, 2008, B196885) [nonpub.] (Cleland II) [affirming conviction on retrial of Rebecca Cleland].
FACTUAL AND PROCEDURAL BACKGROUND
1. The Murder of Bruce Cleland
Bruce Cleland, a shy and frugal bachelor who was unsophisticated about women, worked as a software engineer for TRW, earning a substantial salary. He met Rebecca Quesada Salcedo at a swap meet in late 1995. After the two began dating, Bruce Cleland showered Salcedo with gifts including cars, trips, cosmetic surgery, clothes, a boat, furniture and a diamond ring. Salcedo told her friends Bruce Cleland was “pretty well off” and “made good money.” She disclosed her plan to marry Bruce Cleland, have a child and then divorce him so she could collect child support and be “set for life.”
Bruce Cleland and Salcedo were married in October 1996 in a secret civil ceremony. Although a large church wedding was already planned for January 1997, Salcedo insisted the two be married before purchasing a house. After the civil marriage Bruce Cleland bought a large home in Whittier. Rebecca Cleland, as she became known, moved into the house alone; and Bruce Cleland moved in with his parents until the January 1997 church wedding. Rebecca Cleland, who was having sexual relationships with several other people at the time, required Bruce Cleland to call before visiting the Whittier house.
Both before and after the church wedding, Cleland told friends and acquaintances she did not love Bruce Cleland, did not want to marry him, was unhappy with his sexual performance, had married him for his money and planned to divorce him quickly to obtain financial security. According to her sister, Lorraine Salcedo, who disclosed the request to two others at the time it was made, Cleland asked Lorraine to help her find someone to kill Bruce Cleland and make it look like an accident.
Rebecca Cleland will hereafter be referred to as “Cleland.” Her late husband will be identified as “Bruce Cleland.”
Bruce Cleland moved back to his parents’ home just three months after the January 1997 wedding. Cleland’s cousin, Alvaro Quesada, the brother of Jose Quesada, moved into the Whittier house after Bruce Cleland moved back to his parents’ home. Cleland and Alvaro Quesada were seen to be “very affectionate towards one another” and “always hugging and kissing.” Cleland also resumed a sexual relationship with Steven Rivera, a male stripper and former boyfriend.
In April 1997 Cleland consulted with a divorce attorney and presented Bruce Cleland with a draft separation agreement that would allow her to continue living in the Whittier house and would require Bruce Cleland to pay the mortgage and give Cleland spending money. When Bruce Cleland refused to sign the agreement, Cleland threatened to retaliate by claiming he had molested her young son (from a prior relationship). Bruce Cleland contacted a divorce attorney of his own, who opined that, if the marriage were dissolved, Cleland would not be entitled to a sizeable property settlement or substantial spousal support.
Notwithstanding all these difficulties, Bruce Cleland apparently wanted his marriage to succeed. On July 25, 1997 he told his parents he was going to meet with Cleland to try to work out their differences. The two had dinner together that evening. During dinner, Cleland, the only person seen to use the restaurant’s pay telephone that night, called Alvaro Quesada or his father, Arturo Quesada, several times on the restaurant’s pay telephone and her cellular telephone. In addition, an unidentified woman speaking Spanish used the restaurant’s pay telephone to place a call to a wrong number (answered by Ilma Lopes, who testified at trial) and asked for Jose Quesada. After dinner, the Clelands left the restaurant at 10:30 p.m. or 11 p.m. and went to Arturo Quesada’s house for drinks. When they left Arturo Quesada’s home at about 1:00 a.m., Cleland was driving.
Telephone records introduced at trial indicated Alvaro Quesada telephoned Arturo Quesada’s house several times between 12:35 a.m. and 12:49 a.m. Cleland called Alvaro Quesada several times between 1:00 a.m. and 1:01 a.m. on her cellular telephone. Several of these calls placed Alvaro Quesada and his cellular telephone very close to the location where Bruce Cleland was killed.
Cleland subsequently reported to the police that, shortly after leaving Arturo Quesada’s house, she noticed a warning light on the dashboard indicating the rear hatch was open. She claimed she stopped near the entrance to the Interstate 5 freeway, got out of the car to shut the hatch and was struck on the back of the head and knocked to the ground. Residents of nearby houses heard gunshots, saw a man running away from the scene and heard a car door slam and a car speed away from the area. One of those neighbors, Guadalupe Hernandez, looked out her bedroom window at approximately 1:00 a.m. Although streetlights provided the only illumination of the suspect as he ran down the block on the opposite side of the street, Hernandez, who admitted she had not seen the suspect’s full face, subsequently identified the suspect as Jose Quesada.
A passing taxi driver summoned emergency personnel, who arrived within minutes of the shooting and found Bruce Cleland face-down in a nearby driveway, dead from multiple gunshot wounds. When the police arrived, Cleland’s car engine was still running. Cleland’s keys, purse, cellular telephone and jewelry were on the front seat. Cleland told police her diamond ring was missing. She identified Bruce Cleland as her husband, but did not attempt to approach his body or ask about his condition. The paramedics who examined her for a head wound found no indication of an injury. She was taken to the police station, where her demeanor was described as “kind of carefree and a little bit relaxed.” She also appeared to be “flirtatious and friendly” with one of the police officers.
After Bruce Cleland’s death, Cleland retained counsel to assist her in obtaining the proceeds from Bruce Cleland’s basic life insurance policy from TRW, which would pay a sum equal to half of Bruce Cleland’s annual salary; a TRW optional accidental death policy for $517,000; a $25,000 accidental death policy; a mortgage life insurance policy from Minnesota Life Insurance Company, which would pay the balance on the Whittier house in the event of Bruce Cleland’s death; and the $196,000 proceeds of Bruce Cleland’s TRW stock savings plan.
Meanwhile, Alvaro Quesada continued to live with Cleland at the Whittier house. Cleland and the Quesadas were arrested in early 1998. Approximately two years after the murder, detectives investigating another homicide were informed by Joseph Aflague, a former drug dealer who grew up next-door to the Quesadas’ grandparents and had known Alvaro and Jose Quesada since they were children, that Jose Quesada had approached him sometime in 1997 seeking a gun for a murder (a “hit”) he and his brother had planned.
2. The First Trial
Cleland, Alvaro Quesada and Jose Quesada were each charged with conspiracy to commit murder and first degree murder, with special allegations the murder had been committed for financial gain and while lying in wait. After a jury trial, all three defendants were convicted on both counts; and the jury found the special circumstances allegations to be true. All three defendants were sentenced to life in prison without the possibility of parole.
On appeal this court reversed the convictions of Cleland and Jose Quesada and remanded their cases for retrial, holding the trial court had committed prejudicial error under Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] when it allowed evidence of, and prosecutorial comment about, Jose Quesada’s and Cleland’s postarrest silence. (Cleland I, supra, B143757, at pp. 9-18.) We also held the trial court erred by permitting the prosecutor to introduce evidence of an incriminating statement made by Jose Quesada in response to police questioning following his arrest but prior to being advised of his right to remain silent and to the presence of an attorney. (Id. at pp. 8-9.) We affirmed the conviction of Alvaro Quesada. (Id. at p. 27.)
3. Proceedings on Retrial
Cleland and Jose Quesada were each represented by new counsel for the retrial. In March 2005, more than 18 months before the retrial, Jose Quesada’s counsel made a motion to sever the trial of his client from that of Cleland on the ground her defense counsel had informed him Cleland would contend she had seen Jose Quesada kill Bruce Cleland but had no advance knowledge of the murder plan. The motion was denied.
At the retrial Cleland’s counsel elaborated on this theory of the case. Although the People’s case did not differ significantly from the first trial and depended once again largely on circumstantial evidence, together with Hernandez’s questionable eyewitness identification, to link Jose Quesada to the murder, Cleland’s counsel stated Cleland drove to the murder location expecting her cousins to confront Bruce Cleland over his purported sexual advances to Arturo Quesada. She was “totally shocked” when she saw Jose Quesada kill her husband and feared she would be implicated because she had driven him to the location. She panicked and fabricated the story she and Bruce Cleland had been carjacked and she had been knocked unconscious. According to her counsel, the jury would hear no evidence she had plotted with her cousins to murder her husband. Indeed, according to Cleland’s counsel, she had purchased the life insurance policies with her husband’s permission. The only evidence of any malevolent intent on Cleland’s part was the allegation by her sister Lorraine Salcedo, who is a liar and hates Cleland, that Cleland had solicited her to help find someone to murder Bruce Cleland.
Based on the statements of Cleland’s counsel, Quesada moved for a mistrial and renewed his motion to sever his trial from Cleland’s. The trial court, although obviously troubled by the potential prejudice to Quesada, denied the motions without prejudice to see what evidence would be presented in support of Cleland’s theory. Cleland’s counsel declined to commit to calling Cleland to testify, indicating he would make that determination after hearing the prosecution’s evidence.
Ultimately, Cleland did not testify at the trial. Nonetheless, during closing argument Cleland’s counsel reiterated the same theory he had articulated in his opening statement. Quesada again sought a mistrial, which was granted by the trial court. The jury proceeded to convict Cleland on the charges of first degree murder and conspiracy to commit murder and to find true the special allegations of murder for profit and lying in wait. (See Cleland II, supra, B196885 [affirming Cleland’s conviction].)
4. The Motion to Withdraw as Counsel
At a December 20, 2006 status conference following Quesada’s mistrial, the trial court announced it intended to schedule his retrial quickly. In response, Quesada’s counsel, Gary Meastas, alerted the court to the possibility trial might have to be delayed because he had a potential conflict of interest with Quesada that might require the appointment of new counsel. To prevent disclosure of confidential client information, the court requested Meastas step in chambers to give the court “a sense for what you are talking about.” Although Quesada was present in the courtroom, neither the court nor Meastas requested that Quesada join the discussion in chambers.
During a short discussion concerning the nature of the potential conflict, in which Meastas advised the court he was not yet ready to declare a conflict, the court indicated it would wait for Meastas to file a motion if necessary. Back on the bench, the court set a pretrial hearing for January 4, 2007 and advised all present of its intention to proceed promptly with the retrial on January 12, 2007. Meastas stated his willingness to commit to filing any necessary motion to resolve the potential conflict of interest by January 4 but objected to answering ready for trial on that date in light of the need to resolve the potential conflict before he could proceed to subpoena witnesses. The court acknowledged Meastas’s objection but advised him he would be deemed to be ready as of January 4, 2007 if he decided to stay on the case. The court made no rulings on the issue of Quesada’s representation at the December 20, 2006 conference.
In chambers Meastas advised the court Jose Quesada and his family were opposed to the trial strategy proposed by Meastas of claiming Alvaro Quesada had acted alone in murdering Bruce Cleland.
Meastas did file a motion to withdraw as Quesada’s counsel, which was heard at the pretrial hearing on January 4, 2007. Meastas requested the hearing be conducted in chambers and Quesada be present for the hearing. The court inquired whether “this is kind of in the nature of the Marsden type thing” discussed earlier and, in response to Meastas’s affirmative response, cleared the courtroom. Meastas then informed the court he had confirmed his client opposed the trial strategy proposed by Meastas and believed he should withdraw in light of the conflict. Addressing Quesada directly, the court explained why Meastas’s proposed strategy had the greatest probability of prevailing and asked Quesada for his thoughts. Quesada answered, “Well, your honor, I agree with Mr. Meastas and I agree with you. It’s a moral thing, you know. I love my brother. . . . I really do. It doesn’t feel right. That’s the thing. And there’s other stuff that I want to approach, too, pertaining to police misconduct and unduly influencing the witnesses. And he doesn’t agree with it. I want that approached as well.” Answering Quesada’s concern about police misconduct, the court stated, “If there was something there that would rise to the level [of] legal significance, I am sure he would be arguing it. . . . My point to you would be -- and I would ask you to think about it, nothing that happens in this trial can by used against Alvaro, nothing. . . . Nothing Mr. Meastas says in our trial will hurt your brother’s chances for a new trial.”
When Quesada answered, “I didn’t know,” Meastas interrupted to advise the court he had already explained these facts to his client. The court nonetheless continued speaking to Quesada, “I am not interested in getting into the discussions you guys have had together. I just wanted to make it very clear . . . that whatever happens in this trial will not be used and cannot be used against your brother to hurt his case. . . . I really think it’s in your interest to go forward and let [Meastas] do his job and to trust him to know what he’s doing.” Quesada responded, “And I do feel the same way. . . . [W]hen you explain to me now at another angle, it’s really up to Mr. Meastas, your honor. It’s up to him and you. I mean, it’s out of my hands, really. All I can say is that I do want a fair trial. I’m innocent.” After an additional exchange, the court stated, “I take it then, that you are saying to me that it’s okay, that you understand now that whatever happens in this trial is not going to impact Alvaro’s situation and that you are happy to let Mr. Meastas defend you to the best of his ability and to make any argument that he wants to argue?” Quesada answered, “Yes, your honor.”
5. The Second Retrial
The prosecution’s case remained largely unchanged from the first two trials. Only four witnesses tied Quesada to the murder. The first, Ilma Lopes, testified she received a call on the night of the murder from an unidentified woman speaking Spanish who asked for Jose Quesada. Lopes admitted, however, she remembered only the name “Jose” until she was prompted with the name “Quesada” by the investigating police officer.
Two people offered eyewitness testimony. Virginia Silva saw the shooter running away from the murder scene but was not wearing her glasses and did not see his face. She described the shooter as a stocky man with short hair wearing a jacket. She was unable to identify Quesada as the shooter but testified she realized he had the same build as the shooter after seeing him walk away from her at the first trial in 2000. Guadalupe Hernandez did identify Quesada as the shooter at trial, but her testimony was impeached by her prior statement to the police emergency operator she could not tell the race of the person she saw and her admission at the earlier trial she had told the police she had not seen the person’s face. Hernandez had also initially described the shooter as a “gang member,” 18 to 20 years old, 5’5” tall, weighing 150 to 160 pounds, while at the time of the shooting Quesada was 30 years old and weighed 180 pounds. Moreover, although she picked Quesada’s photograph out of a photographic lineup, she did not identify him as the shooter but merely wrote on the form “Photo 4 is the closest to the person I saw running down the street” after the shooting. Similarly, when presented with a live lineup, Hernandez wrote, “From the six I would say number 6 looks most like the man I saw that night.” Notwithstanding the uncertainty reflected in those two statements, she told the detective on the way to her car after the live lineup she was “98 percent” sure the man in the sixth position was the shooter.
The People’s final witness against Quesada, Joseph Aflague, an admitted drug dealer and paid informant who knew Quesada and his brother, Alvaro, testified Quesada had approached him and asked for a gun and a driver because he had a “hit he had to take care of.” Quesada also purchased some drugs from Aflague. To Aflague, who knew Quesada to be a heavy drug user, Quesada appeared to be suffering withdrawal symptoms at the time but was not then under the influence of drugs. On a later occasion Quesada again asked Aflague about a gun but told him he would not need a driver because he and Alvaro would do the hit together. Aflague testified he never sold Quesada a gun but later learned Bruce Cleland, the husband of Quesada’s cousin, had been murdered.
The defense tried the case on a theory of mistaken identity, challenging the reliability of Hernandez’s identification and painting Aflague as a self-interested and dishonest informant. Quesada called his mother to testify he and his then-girlfriend had spent the night of the murder with her, but her credibility was undermined by her failure to come forward with the alibi until eight years after the murder. She also testified Quesada, who had broken his hand several weeks before the shooting, had just had the cast removed and could not have moved his hand well enough to fire a gun. The former girlfriend who could have corroborated Quesada’s alibi did not testify and her absence was not explained. Quesada closed with an expert witness who discussed the fallibility of eyewitness identification.
The jury convicted Quesada on the charges of conspiracy to commit murder and first degree murder and found true the special circumstances allegations. The court sentenced Quesada to life without the possibility of parole.
CONTENTIONS
Quesada contends the trial court may have committed prejudicial error in failing to disclose material discoverable under Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and requests we independently review the in camera hearing on his Pitchess motion to determine whether the trial court properly exercised its discretion in determining which documents in the officers’ personnel files were discoverable. Quesada also contends the court erred in its resolution of the motion of his defense counsel to withdraw from the case and violated his constitutional rights by conducting an in chambers hearing with his counsel outside of his presence. He further contends his counsel’s failure to object to improper comments by the prosecutor in closing argument requires reversal of his conviction. Finally, he contends the court erred in denying him presentence conduct credit.
DISCUSSION
1. The Trial Court Did Not Err in Determining, Based on Its In Camera Review, the Extent of the Pitchess Material To Be Disclosed to Quesada
“For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc) (fn. omitted); see Pitchess, supra, 11 Cal.3d 531.) To balance the defendant’s right to discovery of records pertinent to his or her defense with the peace officer’s reasonable expectation that his or her personnel records will remain confidential, the Legislature has adopted a statutory scheme requiring a defendant to meet certain prerequisites before his or her request may be considered. (See Pen. Code, §§ 832.5, 832.7 & 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].) Specifically, a defendant seeking discovery of a peace officer’s confidential personnel record must file a written motion describing the type of records or information sought (Evid. Code, § 1043) and include with the motion an affidavit demonstrating “good cause” for the discovery and the materiality of such evidence relative to the defense. (Mooc, at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) The information must be requested with “sufficient specificity to preclude the possibility of a defendant’s simply casting about for any helpful information.” (Mooc, at p. 1226.)
Once the trial court concludes the defendant has satisfied these prerequisites, the custodian of records is obligated to bring to court all documents “potentially relevant” to the defendant’s motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court must then examine the information in chambers, outside the presence of any person except the proper custodian “and any other persons as the person authorized to claim the privilege is willing to have present.” (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see Warrick v. Superior Court, supra,35 Cal.4th at p. 1019.) Subject to certain statutory exceptions and limitations, the trial court must then disclose to the defendant “‘such information [that] is relevant to the subject matter involved in the pending litigation.’” (Mooc, at p. 1226; Warrick, at p. 1019.) “A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial court must exclude from discovery: “(b)(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.” (Evid. Code, § 1045; see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
Quesada sought pretrial discovery of material from the personnel files of Los Angeles Police Officers Rick Peterson and Thomas Herman. Following an in camera review of the officers’ files, the trial court ordered limited material from Herman’s file to be provided to the defense. On appeal Quesada requests we review the in camera proceedings to determine whether that order properly included all discoverable materials to which he was legally entitled. We have reviewed the sealed record of the in camera proceedings, which included detailed descriptions of the documents in the officers’ personnel files, and conclude the trial court’s order concerning the production of Pitchess material complied with all statutory and common law discovery requirements. (See Mooc, supra, 26 Cal.4th at p. 1229.)
2. The Trial Court Did Not Err in Adjudicating the Conflict Between Quesada and His Counsel
“The right of a nonindigent criminal defendant to discharge his retained attorney, with or without cause, has long been recognized in this state . . . .” (People v. Ortiz (1990) 51 Cal.3d 975, 983.) While a defendant may discharge appointed counsel only if that lawyer is rendering inadequate representation or there exists an irreconcilable conflict between counsel and client (see People v. Marsden (1970) 2 Cal.3d 118, 123), he or she may discharge retained counsel for any reason. (Ortiz, at p. 984.)
The right to discharge retained counsel, however, is not absolute. The trial court may deny a request to discharge retained counsel “if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice.’” (Ortiz, supra, 51 Cal.3dat p. 983.) “[T]he ‘fair opportunity’ to secure counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest against which the [S]ixth [A]mendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place at the same time.”’” (Id. at pp. 983-984.)
Because the right to discharge retained counsel is broader than the right to discharge appointed counsel, a Marsden-type hearing at which the court determines whether counsel is providing adequate representation or is impeded by irreconcilable differences with his or her client is “‘[an] inappropriate vehicle in which to consider [the defendant’s] complaints against his retained counsel.’” (People v. Hernandez (2006) 139 Cal.App.4th 101, 108, quoting People v. Lara (2001) 86 Cal.App.4th 139, 155.) Instead, under the applicable test for retained counsel, the court should “balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution.” (Lara, at p. 153.) In so doing, the court “must exercise its discretion reasonably: ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’” (Ortiz, supra, 51 Cal.3d at p. 984.)
Relying on Ortiz, supra, 51 Cal.3d 975,Quesada argues the trial court erred by conducting a “Marsden-type hearing” on the nature of the conflict of interest between him and his counsel, Meastas, rather than promptly granting his request to discharge his counsel. He contends the court should not have attempted to dissuade him from firing Meastas but should have simply terminated the hearing and appointed new counsel. Having failed to do so, Quesada asserts the court improperly obtained waivers of his right to discharge counsel and his right to present the defense of his choice -- waivers that were not knowing, voluntary and intelligent.
In Ortiz, supra, 51 Cal.3d 975 the Supreme Court held the trial court had erred by requiring the defendant to demonstrate the incompetence of his retained attorneys before allowing him to discharge them following declaration of a mistrial in his favor. As the Court observed, “Defendant’s motion, made after the mistrial and well before any second trial, was sufficiently timely; the timing reflects defendant’s genuine concern about the adequacy of his defense rather than any intent to delay the retrial. On this showing, discharge of the [lawyers] would not have interfered with the ‘orderly processes of justice.’” (Id. at p. 987.)
In presenting this argument, Quesada mischaracterizes the manner in which the issue was raised, as well as the nature of the court’s response. The court was informed of the potential conflict between Quesada and Meastas on December 20, 2006, shortly after granting Quesada’s motion for a mistrial, in response to a direct inquiry about a new trial date. The court conferred with Meastas in chambers to learn the nature of the potential conflict but took no action at that time. Instead, the court directed Meastas to file a motion to withdraw if he decided one was necessary and ordered that it be filed no later than the pretrial hearing calendared for January 4, 2007.
At the January 4, 2007 hearing Meastas presented his motion and requested to proceed in chambers with Quesada present. The court cleared the courtroom and initiated an inquiry directly of Quesada as to his perception of the conflict. The court offered its own assurances to Quesada regarding the concerns he had raised, who then acknowledged he would like to proceed with Meastas and pursue the strategy proposed by Meastas. Although Quesada was given ample opportunity to request the appointment of new counsel, he never did so.
Thus, the court was never presented with a demand from Quesada for new counsel; instead, the motion before the court was brought by Meastas who sought to withdraw rather than impair the rights of his client. The court responded by addressing Quesada directly and allowing him to articulate his concerns. Quesada explained those concerns, which the court in turn answered. Whether or not Ortiz or its progeny was cited at the hearing, this interaction fully comported with the need to “balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution.” (People v. Lara, supra, 86 Cal.App.4th at p. 153.) The transcript reveals no improper pressure by the court; to the contrary, Quesada appeared to appreciate fully the ramifications of his decision to continue to be represented by Meastas. Whatever magical words he now insists should have been utilized, Quesada’s interests were well-served by the court.
3. Quesada’s Constitutional Rights Were Not Violated by His Absence from the In Chambers Conference with Meastas
“‘[A] defendant has a federal constitutional right, emanating from the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, to be present at any stage of the criminal proceedings ‘that is critical to its outcome if his presence would contribute to the fairness of the procedure.’ [Citations.] In addition, a defendant has the right to be personally present at critical proceedings, pursuant to the state Constitution [citations], as well as pursuant to statute.’” (People v. Bradford (1997) 15 Cal.4th 1229, 1356-1357; accord, People v. Perry (2006) 38 Cal.4th 302, 311.) “‘An appellate court applies the independent or de novo standard of review to a trial court’s exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial court’s decision entails a measure of the facts against the law.’ [Citation.] Erroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice.” (Perry, at pp. 311-312; accord, People v. Santos (2007) 147 Cal.App.4th 965, 974.)
There can be no question Quesada had a right to be present, which he was, at the January 4, 2007 hearing on Meastas’s motion to withdraw from his representation. As the Supreme Court observed in Perry, supra, 38 Cal.4th at page 313, “We do not dispute that a defendant may be entitled to be present at a conference called to consider whether to remove his counsel for conflict of interest or any other reason, because the removal of counsel will affect defendant’s representation at trial, and is a matter on which defendant’s views should be heard.” But Quesada’s rights were not compromised by his absence from the December 20, 2006 in chambers conference at which no motion was ever made or considered. Indeed, upon learning of Meastas’s concerns, the judge simply advised Meastas to file a motion if he decided one was necessary and then resumed proceedings in open court.
4. Quesada’s Claim of Ineffective Assistance of Counsel Fails Because He Has Not Demonstrated His Counsel Was Ineffective or He Suffered Any Prejudice
Quesada urges us to hold his counsel’s failure to object to the prosecutor’s assertion his former girlfriend did not testify because she did not want to lie constituted ineffective assistance of counsel. To prevail on this claim, Quesada must establish both his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Williams (1997) 16 Cal.4th 153, 215.)
“‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action “‘might be considered sound trial strategy’” under the circumstances. (Strickland v. Washington, supra,466 U.S. at pp. 689, 694; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) On a direct appeal a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel’s challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 [“[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions”]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [“‘[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention [that counsel provided ineffective assistance] must be rejected’”].) “[R]arely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical.” (People v. Lewis (2001) 25 Cal.4th 610, 678.)
Here, it is not difficult to conceive that Meastas made a tactical decision to forgo an objection, which would have highlighted the absence of a potentially exculpatory witness to the jury. (See People v. Catlin (2001) 26 Cal.4th 81, 165 [“the decision whether to object, move to strike, or seek admonition regarding [objectionable] testimony is highly tactical, and depends upon counsel’s evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight the undesirable testimony”]; People v. Williams, supra, 16 Cal.4th at p. 215 [“trial counsel may have decided not to object . . . because an objection would have highlighted the testimony”].)
We recognize Meastas was effectively thrust upon the horns of a dilemma: Absent an objection, the defendant suffers a forfeiture on appeal; with an objection, the defendant highlights the very thing he or she wants the jury to disregard. Nonetheless, in such a circumstance an objection accompanied by a request for an admonition, if one would cure the problem, or request for mistrial, if an admonition would not cure the problem, appears to be the most effective means of addressing the problem while preserving the issue for appeal.
Without question, the language Quesada complains of is troublesome. Although a prosecutor is entitled to urge any conclusions he or she believes can be reasonably drawn from the evidence (People v. Cash (2002) 28 Cal.4th 425, 509; see People v. Stanley (2006) 39 Cal.4th 913, 952), the statement, “She’s not going to come in and lie for him,” appears to be an affirmative statement of what the ex-girlfriend’s testimony might have been; the follow-up assertion, “That is . . . why she’s not here,” likely crossed the border of permissible comment on the evidence. Nonetheless the challenged comments were brief and seem to add little to the resonating question in the listener’s mind, “Where is the ex-girlfriend?” It is entirely plausible Meastas, an experienced and skilled lawyer, decided not to call further attention to a glaring deficiency in Quesada’s defense.
A prosecutor may not argue what the testimony of an uncalled witness would have been. (People v. Wolfe (1954) 42 Cal.2d 663, 668-669; People v. Hall (2000) 82 Cal.App.4th 813, 817; People v. Gaines (1997) 54 Cal.App.4th 821, 824-826.)
Even if Meastas’s failure to object to the remark could be deemed ineffective assistance (a dubious proposition for the reasons explained), in light of the instructions and admonitions given that statements of counsel are not evidence and the damaging testimony of Hernandez and Aflague, it is not reasonably probable that, absent the error, Quesada would have received a more favorable verdict. (People v. Williams, supra, 16 Cal.4th at p. 215 [it is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a “reasonable probability” that absent the errors the result would have been different]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218; see People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
5. Quesada Is Entitled to a Recalculation of His Conduct Credits
At the sentencing hearing the court declined to calculate Quesada’s total presentence custody credits because of the complexity created by the reversal of his first conviction. Quesada contends and the Attorney General concedes neither the judgment nor the abstract of judgment accurately reflects Quesada’s earned presentence custody credit and must be corrected. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 [incorrect calculation of legally mandated custody credit is an unauthorized sentence that may be corrected at any time].)
The court noted Quesada had been in actual custody for 3,294 days but explained, “[B]ecause he’s been to prison and back the court is not [going] to attempt to determine what good time credits, if any, he is to receive.”
Under People v. Buckhalter (2001) 26 Cal.4th 20 and In re Martinez (2003) 30 Cal.4th 29, a sentencing court is required to identify the components of a convicted defendant’s time in custody to calculate the appropriate conduct credits. Quesada’s custody can be broken into four components: Phase I, the period from his initial incarceration to the initial sentencing; Phase II, the period from the initial sentencing to the reversal in Cleland I; Phase III, the period from the reversal to the second sentencing; and Phase IV, the period after the second and final sentencing. (See, e.g., Martinez, at p. 32.) The trial court was required to calculate not only Quesada’s actual custody time but also his conduct credits for Phases I and III, which are considered presentence in nature, while the Department of Corrections is responsible for calculation of conduct credits earned, if any, during post-conviction Phases II and IV. (See People v. Brown (2004) 33 Cal.4th 382, 405.)
Because the murder occurred on July 25, 1997, Quesada is entitled to 15 percent presentence conduct credit during Phases I and III, a calculation that should be made by the sentencing court on remand. (See People v. Ly (2001) 89 Cal.App.4th 44, 47 [“[f]or murders occurring on or after September 21, 1994, and before June 3, 1998, presentence conduct credits are awarded pursuant to [Penal Code] section 2933.1, subdivision (a)”]; see also People v. Cooper (2002) 27 Cal.4th 38, 43-44; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1315-1317.)
DISPOSITION
The judgment is affirmed in all respects except as to the calculation and award of presentence custody credits. The case is remanded to the trial court with directions to calculate the presentence custody credits for Phases I and III and to correct the abstract of judgment to reflect the proper presentence credit for those two phases and to note the Department of Corrections and Rehabilitation is to determine any applicable custody credits for Phases II and IV. The trial court shall forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: WOODS, J. ZELON, J.