Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CR-F-07-9312
OPINION
RIVERA, J.
Defendant Vera Inez Rehfeld appeals a judgment entered upon a jury verdict finding her guilty of first degree murder, and finding true an allegation that she had used a dangerous and deadly weapon. (Pen. Code, §§ 187, 12022, subd. (b)(1).) The trial court sentenced her to a prison term of 25 years to life for murder, with a consecutive one-year term for the weapon enhancement. Defendant contends that the trial court committed instructional error and that it erred in failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We affirm.
All statutory references are to the Penal Code.
I. BACKGROUND
A. Events Before the Killing
Defendant, who was 79 years old, rented a room in her mobile home to the victim, James McElroy. He paid her for his room and board, and was expected to do certain chores, such as collecting the mail and the newspaper and taking care of the yard. However, he eventually stopped doing those tasks, and defendant’s son-in-law, Donald Wilhelmy, helped her with the newspaper and mail. In or around December 2006, defendant told Wilhelmy she was unhappy with McElroy, and he told her that she should have him move out. At some point, defendant became upset because she believed McElroy and his son had stolen some of her belongings, including a shovel. Defendant told Wilhelmy that McElroy had agreed to pay her $400 for the items.
Tina Tiner, a friend of McElroy and the mother of his son, testified that McElroy was in poor health, with physical and mental health problems. He was frustrated by his relationship with defendant, and told Tiner defendant became frustrated with him when he did not eat the food she had cooked and became angry when he did not clean up after himself. Defendant did not like McElroy smoking in her home, and became angry when he did not put his cigarette butts in the garbage. McElroy came to Tina’s house on January 26, 2007. He told her that defendant’s son was going to “euthanize the mentally ill people” within the next day.
B. Discovery of McElroy’s Body and Subsequent Events
On approximately Saturday, January 27, 2007, Wilhelmy went to defendant’s house, and saw McElroy lying on the floor of the den, covered with a blanket. Defendant told Wilhelmy that McElroy had consumed 14 raw eggs and some egg shells, and that he had “messed in his pants.” It appears she told him that McElroy was lying on the floor because his bed had become soiled. Defendant called Tiner, apparently on Sunday, January 28, and asked her to clean McElroy’s room because there was a “mess” on his bed.
The next day, Monday, January 29, Wilhelmy went to defendant’s home, saw McElroy still lying on the floor, and told defendant that McElroy looked as if he might be dead. Defendant felt McElroy’s face, and said “yes, he is dead,” appearing surprised. Wilhelmy called 911. When the paramedics arrived, they cut his shirt, revealing stab wounds.
On Tuesday, January 30, defendant left a message for Tiner telling her McElroy had stabbed himself in the stomach. In the days following McElroy’s death, Wilhelmy found a pair of soiled underpants in the sink of McElroy’s bathroom and another pair in the tub. He also found eggshells on the bed and floor in McElroy’s room.
According to Wilhelmy, defendant had been taking “some kind of medication.” After being taken to jail, she stopped taking the medication, and she was more alert and seemed to think more clearly than she had when taking the medication.
A nurse at the county jail testified that defendant was “pretty much on the same meds” in jail as she was when she came in, although she had begun taking an antidepressant while in jail.
A couple of weeks after McElroy was killed, defendant called Tiner and told her that McElroy had not paid his rent for January. She asked Tiner to get the money from McElroy’s account, to which Tiner had access.
After the killing, defendant hired Manuel Munoz to clean the stains from the house. She told Munoz various versions of the events surrounding McElroy’s death. She originally told him McElroy had tried to kill himself by eating raw eggs and drinking a gallon of milk. The next time Munoz came to the house, she asked him and his colleagues whether they were “scared to enter this murderess’ [sic] house.” She told them that someone seeking money had beaten McElroy up and that he had thrown his pants out the back window because there was money in them. She later told them McElroy must have killed himself, and also suggested that his former girlfriend might have been involved. While cleaning defendant’s home, Munoz’s wife found a knife behind a couch. Defendant said the knife was not part of her set and that someone else must have brought it in.
Munoz said that over the time he worked cleaning defendant’s house, her demeanor varied: at times she was cheerful, and at other times she was “extremely distracted,” “loopy,” and “completely a wreck.” She told Munoz that she was “medicated.”
C. The Investigation
An autopsy revealed that McElroy died of multiple stab wounds. He had four stab wounds on his neck, one on the left side and three on the back of the neck. One of the stab wounds to the back of the neck was four inches deep, and penetrated the brain stem. An injury of this sort is fatal, although the victim could be conscious and able to move around for a time before becoming paralyzed and dying within 15 to 20 minutes. The victim would bleed and might vomit during this period. The fatal wound and at least one other wound were consistent with having been inflicted while the victim was lying face down, and the wound to the side of the neck was consistent with the victim lying on his side when stabbed. McElroy also had a four-inch stab wound in his abdomen that was probably inflicted after death. There were no defensive wounds on his body. There were no egg shells in the contents of his stomach.
Dr. Susan Comfort, who performed the autopsy, testified that if the victim were lying face down on a bed when attacked, she would expect to find a pool of blood on the bed, and would not expect to find defensive wounds on the victim.
There was a large bloodstain on the mattress in McElroy’s bedroom, and more bloodstains under the pillows. The stain on the mattress was covered with white foam, which appeared to come from a can of spray rug cleaner. The bloodstains were consistent with McElroy’s blood type. There were bloodstains and vomit stains in the living room. A knife with bloodstains consistent with McElroy’s blood type was found on a heater near his body.
McElroy’s body was visible to anyone going from the front door to any of the rooms in the back of the house, including the kitchen, and was visible from the kitchen. It was also visible when coming from the master bedroom to the front door. There were egg shells in McElroy’s bedroom. A pair of soiled underwear was in the bathroom closest to McElroy’s room. Outside the house, there were clothes with about $621 in them.
D. Defendant’s Statements to Law Enforcement Officers
After the incident, defendant gave various versions of events to police officers. She originally told Sergeant Garrett Scott of the Crescent City Police Department that a few nights before McElroy was found dead, she had heard him screaming and saw him tossing and turning on the living room floor. His soiled pants were on the floor of his bedroom, and she put them in the sink. He declined when she asked if he wanted her to call an ambulance. She believed he had become sick from eating 14 rotten eggs, shells and all. She gave him a pillow and covered him with a blanket; when she did so, she saw a knife by his side. Scott asked her whether anyone could have gotten into the residence and killed McElroy, and she said no one could have and that he must have done it himself.
Defendant spoke with Kieth Doyle, a detective with the Crescent City Police Department. During the course of their conversations, she gave him confusing and inconsistent versions of the events surrounding McElroy’s death. She said on one occasion that she had sprayed the bed with the rug cleaner in an attempt to clean it after McElroy had defecated on the bed, and that McElroy had defecated in his pants, taken a shower with his pants on, came out, and sat on the bed. She stated he later took 14 eggs and some milk from the refrigerator, returned to his room, ate the eggs raw, shells and all, drank the milk, and got sick. He then lay down on the floor of the den, and she covered him with a blanket. He was groaning with pain, but declined defendant’s offer to call an ambulance. She told Doyle both that McElroy had fallen down on the floor and never gotten up, and that he had afterward gotten up to use the bathroom. Among her other statements to Doyle, defendant said that McElroy told her that he had been stabbed, that he was taking a medication that made him sleep a lot, that McElroy had lain on the floor until he was discovered, that she thought he was sleeping and did not want to disturb him, that she did not check on him, and that she had not seen any blood. At one point, when Doyle referred to Friday, January 26, she said, “well, that was the night he died.”
Defendant offered various theories about the circumstances of McElroy’s death. In Doyle’s initial interview with defendant, defendant said something like, “I didn’t do it. I would have had to be awful mad.” She also suggested that McElroy had stabbed himself out of depression over not seeing his son, that someone to whom he had loaned money or who had loaned money to him might have killed him, or that Tiner’s current boyfriend might have committed the crime. She suggested that she might not have heard the killing either because she was distracted or because the noise was drowned out by the sound of tennis shoes in the dryer. In one conversation, Doyle told her that he had found prints, apparently on the knife used to stab McElroy, and defendant said that they would not be hers because she would have worn gloves. At another point, Doyle told her that the evidence indicated that she had killed McElroy, and she responded, “I must have done it. But if I did I don’t remember.” When defendant was being booked into jail, she told an employee of the Sheriff’s Department that she had always told her children to tell the truth because if they did not it would “snow ball,” and said, “That’s why I’m here. I did it.”
Defendant also told Doyle that McElroy owed her $1,100, and that she believed she was entitled to the $610 found in his clothing outside her residence.
E. Defense Case
Daniel Stein, a physician’s assistant at the clinic where defendant received medical care, testified that defendant suffered from a variety of medical problems, for which she took some medications. On January 8, 2007, defendant was prescribed Ambien for insomnia. The side effects of Ambien include dizziness, drowsiness, and suicidal or homicidal ideation, and the medication had a “black box” warning. Some of the other medications defendant had been prescribed could affect the cognitive functions by making the patient sleepy. Stein ordered a mental exam on February 12, 2007. At an appointment on that date, defendant told Stein her housemate had been murdered, and that she found comfort in the fact that the investigating officer was a born-again Christian like herself, and that she could see the hand of God in the situation. In an earlier visit, she had said that her housemate was “into weird activities,” and at some point she told Stein that he would often fail to come home for days. Over the course of his treatment of defendant, Stein noticed that she was confused.
II. DISCUSSION
A. Duty to Instruct on Voluntary Manslaughter
Defendant contends the trial court was obliged to instruct the jury sua sponte on the crime of voluntary manslaughter, and that she was prejudiced by the court’s failure to do so.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than charged. [Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Under this rule, “a trial court errs if it fails to instruct, sua sponte, on all elements of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (Id. at p. 162.) The court “need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented” (People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4), but only when there is “ ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]” ’ that the lesser offense, but not the greater, was committed.” (Breverman, supra, 19 Cal.4th at p. 162.) Voluntary manslaughter is a lesser included offense of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422 (Ochoa).)
Breverman explained the elements of voluntary manslaughter: “An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’ (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ “ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ [Citations.] ‘ “[N]o specific type of provocation [is] required....” ’ [Citations.] Moreover, the passion aroused need not be anger or rage, but can be any ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion’ ” ’ [citations] other than revenge [citation]. ‘However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter....’ [Citation.]” (Breverman, supra, 19 Cal.4th at p. 163.) “[H]eat of passion” manslaughter is distinguished from murder by provocation. “The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.]” (People v. Lee (1999) 20 Cal.4th 47, 59.)
Defendant contends the jury should have been instructed on voluntary manslaughter because there was sufficient evidence that the killing was the outcome of a “final, major argument” over McElroy’s failure to pay the rent and to pay for missing items. She argues that this evidence, combined with the evidence of McElroy’s mental health problems, the mutual frustration of defendant and McElroy with each other, and the fact that McElroy had more than $600 in the pocket of the clothing that was found outside the residence, was susceptible to the interpretation that defendant asked McElroy for the money she believed he owed her and that he responded with “paranoid ideations and an intransigent refusal to make good on the debt.”
We reject this contention. While the evidence defendant points to indicates that she believed McElroy owed her money for the missing items and that he had not paid his January rent, nothing in the record indicates that the two had a major argument that led to defendant killing McElroy in the heat of passion. Indeed, the evidence that McElroy was stabbed when lying face down on the bed suggests that defendant killed him not in the midst of passion caused by a heated argument, but rather with deliberation.
Furthermore, even if there were sufficient evidence that defendant killed McElroy in the heat of passion, there is nothing to suggest that the provocation was of the sort that would cause an ordinarily reasonable person to act rashly, and from passion rather than judgment. (See Breverman, supra, 19 Cal.4th at p. 163.) As recently noted by our Supreme Court, “ ‘The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation and heat of passion must be affirmatively demonstrated. [Citations.]’ [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 826.) There is no evidence from which a jury could conclude that defendant’s and McElroy’s mutual frustration and disagreements about money provided the sort of provocation that would inflame the average, sober person to the extent that she would lose reason and judgment.
Citing Justice Kennard’s dissenting opinion in Breverman, defendant contends the failure to provide an instruction on voluntary manslaughter violated her rights under the federal Constitution. In her dissent, Justice Kennard addressed an issue the majority opinion there did not reach—whether in failing to instruct on voluntary manslaughter, the trial court had neglected in that case to instruct the jury on an element of murder, namely the absence of heat of passion. (Breverman, supra, 19 Cal.4th at p. 170, fn. 19; id. at pp. 187-195 (dis. opn. of Kennard, J.).) Justice Kennard concluded: “Where, as here, there is sufficient evidence of heat of passion to support a voluntary manslaughter verdict, murder instructions that fail to inform the jury it may not find the defendant guilty of murder if heat of passion is present are incomplete instructions on the element of malice.” (Id. at pp. 189-190, italics added, fn. omitted.) As defendant acknowledges, this view was expressed in a dissent, and the majority opinion did not address the issue. Whether or not this view is correct, “nothing in either the majority or dissenting Breverman opinion suggests that the federal Constitution, any more than the California Constitution, is infringed when a theory of voluntary manslaughter unsupported by any substantial evidence is omitted from the law presented to the jury.” (People v. Holloway (2004) 33 Cal.4th 96, 141.) In the absence of substantial evidence of heat of passion and adequate provocation, we reject defendant’s claim of federal constitutional error.
B. Duty to Instruct on Unconsciousness as a Defense
Defendant likewise contends that the trial court erred in failing to instruct the jury sua sponte that unconsciousness caused by prescription medicines was a complete defense to the crime of murder. Defendant argues that the record contains evidence that she was unconscious at the time of the killing, pointing in particular to her statements that she did not recall killing McElroy, her statements that McElroy had killed himself, and the fact that she apparently called Tiner to ask her to clean the bed even as McElroy lay dead in her home.
“[A]s a corollary of its duty to instruct on all principles closely and openly connected with the facts of the case, and which are necessary for the jury’s understanding of the case [citations], the court must instruct on an affirmative defense, specifically including unconsciousness, even in the absence of a request, ‘if it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 468-469; see also People v. Rogers (2006) 39 Cal.4th 826, 887.) Unconsciousness, if not caused by voluntary intoxication, is a complete defense to a criminal charge. (People v. Halvorsen (2007) 42 Cal.4th 379, 417; § 26, class Four.) “Unconsciousness for this purpose need not mean that the actor lies still and unresponsive.... [U]nconsciousness ‘ “can exist... where the subject physically acts in fact but is not, at the time, conscious of acting.” ’ [Citations.]” (Ochoa, supra, 19 Cal.4th at pp. 423-424.) The defendant has the burden of producing evidence of unconsciousness if he or she wishes to rely on that defense. (People v. Froom (1980) 108 Cal.App.3d 820, 830.)
The only cause of unconsciousness defendant suggests is intoxication caused by the medications she had been prescribed. Although one who is unconscious of his or her actions due to involuntary intoxication is exempted from criminal responsibility, the rule is different for one who is voluntarily intoxicated: “No action committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition” (§ 22, subd. (a)), although evidence of voluntary intoxication is admissible on the question of whether or not the defendant actually formed the required specific intent or premeditated, deliberated, or harbored malice aforethought when charged with murder (id., subd. (b)). Voluntary intoxication includes the voluntary ingestion of “any intoxication liquor, drug, or other substance.” (Id., subd. (c).)
We cannot conclude on this record that defendant was entitled to the benefit of a sua sponte instruction on the complete defense of unconsciousness. Although the record indicates that defendant took certain drugs with side effects that could include drowsiness and homicidal and suicidal ideation, there is no evidence of the amounts of those medications defendant actually took in the time preceding the killing, or that the medications’ effects on defendant were—or could be—so severe as to cause her to act unconsciously. Despite the evidence that defendant might not have recalled killing McElroy, we cannot conclude there is substantial evidence that her prescribed medications caused unconsciousness.
In any case, we see no possibility that the result would have been different if the court had so instructed the jury. Under the instructions it was given, in order to convict defendant of first degree murder, the jury found that she acted willfully, deliberately, and with premeditation—that is, that she intended to kill, that she carefully weighed the consequences of her choices and knowing the consequences decided to kill, and that she intended to kill before committing the act that caused death. (CALCRIM No. 521; see also § 189.) These findings are irreconcilable with a conclusion that defendant was not conscious of her actions.
Our Supreme Court has not yet decided whether prejudice from the failure to instruct on an affirmative defense should be evaluated under the state standard of prejudice (People v. Watson (1956) 46 Cal.2d 818, 836) or the more rigorous federal standard (Chapman v. California (1967) 386 U.S. 18, 24). (People v. Salas (2006) 37 Cal.4th 967, 984.) Under either standard, we would reach the same result.
C. Alleged Marsden Error
Defendant’s final contention is that the trial court erred in failing to hold a hearing pursuant to Marsden. During trial, defendant waived her right to testify in her own defense in the following exchange: “The Court:... I’ll get a waiver on the record. [¶] Mr. McClendon [defense counsel]: Yes. We have discussed it numerous times and discussed the reasons. And she is following my advice and has agreed she’s waiving her right against testifying. [Sic.] I’ve explained to her she has an absolute right. And she also has an absolute right not to testify. So she is choosing to exercise her constitutional right not to testify. [¶] The Court: And would you have her state that on the record. [¶] Mr. McClendon: Do you agree with that[,] Inez? [¶] Defendant...: Yes. [¶] The Court: And Mrs. Rehfeld, do you understand you do have a right to testify? [¶] Defendant...: Sir? [¶] The Court: Do you understand you do have a right to testify? [¶] Defendant...: Yes and—yes. And I wanted to. [¶] The Court: But knowing that you wanted to it’s—Mr. McClendon’s has [sic] indicated after talking to him you’ve decided not to? [¶] Defendant...: Because of my daughter. [¶] The Court: And you now give up your right to testify? [¶] Defendant...: Yes. [¶] The Court: Anything further? [¶]... [¶] Mr. Riese [the prosecutor]: Yeah, I just—I didn’t understand. Maybe I didn’t hear it correctly. She wanted to testify but she doesn’t want to testify because of her daughter? [¶] Mr. McClendon: She’s consulted with her daughter in addition to me. [¶]... [¶] The Court: Mr. McClendon, you’re satisfied she understands her rights and she knowingly, intelligently waives her right to testify? [¶] Mr. McClendon: Yes.” The court found defendant had made her decision knowingly and intelligently.
After the court and counsel discussed other matters, defendant interrupted the proceedings to say that the reason she wanted to testify was because “they don’t know me. They don’t know who I am.” She told the court she had the “title” of missionary, and indicated that she worried about who was helping the people at a convalescent hospital find Christ. The court asked whether she understood that she had made a decision not to testify, and defendant replied: “I’m not going—I’d like to let everyone know how James came into my house. I was lied to a lot. And I wanted a woman. Tina promised to move in. She had no intention of doing that. She just wanted to get rid of James.” Defense counsel said, “We talked about that at some length.” The court asked defendant, “You still have decided not to testify; is that correct, ma’am?” and defendant answered, “Yes.”
After the jury rendered its verdict, the court scheduled the sentencing hearing and defendant asked the court, “Judge, can we have another trial or new trial or [sic] this whole thing? Those people never got anything but lies. I was talked out of giving my testimony. I had the real story. And they said I wouldn’t get as much—you know—sentence if I would—” The court reminded defendant that she had waived her right to testify, and she replied, “I didn’t chose. Somebody choose for me.” [Sic.] The court told her, “you can talk to your attorney about that and what your options are.”
Defendant contends her request for a new trial, in conjunction with her statement to the court that she had wanted to testify but had been dissuaded from doing so, should have been treated as a request for substitute counsel. “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. (People v. Marsden, supra, 2 Cal.3d at p. 124.) ‘ “Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ ” (People v. Mendoza (2000) 24 Cal.4th 130, 157..., quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8....)’ (People v. Valdez (2004) 32 Cal.4th 73, 97....) While the law does not require that defendant use the word ‘Marsden’ to request substitute counsel, we will not find error on the part of the trial court for failure to conduct a Marsden hearing in the absence of evidence that defendant made his desire for appointment of new counsel known to the court. ([People v. Dickey (2005) 35 Cal.4th 884], 920-921 [(Dickey)].)” (People v. Richardson (2009) 171 Cal.App.4th 479, 484 (Richardson).)
In support of her contention that the trial court should have held a Marsden hearing, defendant draws our attention to People v. Mendez (2008) 161 Cal.App.4th 1362 (Mendez). The defense attorney there told the trial court at the probation and sentencing hearing that the defendant was moving for a new trial “ ‘based on competency of counsel.’ ” (Id. at p. 1365.) The court asked how the defendant contended his attorney was incompetent, and the defendant indicated that his attorney had not called eight possible witnesses in his defense and had not introduced exculpatory evidence, including telephone records that showed the time frame of the incident in question. Upon further questioning, the defendant named two witnesses he contended could have testified that he was not involved in the incident. (Id. at pp. 1365 1366.) The court appointed new counsel to investigate whether there was a basis for a new trial motion based on competency of counsel. The new counsel indicated that a motion for a new trial based on ineffective assistance of counsel was not appropriate, and the court again assigned the case to the original trial attorney. (Id. at p. 1366.)
The Court of Appeal reversed the judgment and remanded the matter for a Marsden hearing. (Mendez, supra, 161 Cal.App.4th at p. 1369.) In doing so, it concluded that the trial court had ignored four of Marsden’s requirements: (1) to allow a defendant who complains about the adequacy of appointed counsel to articulate his causes of dissatisfaction and, if any of the reasons suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is rendering effective assistance; (2) if a defendant states facts sufficient to raise a question about counsel’s effectiveness, to question counsel as necessary to ascertain their veracity; (3) to make a record sufficient to show the nature of the defendant’s grievances and the court’s response to them; and (4) to allow the defendant to express specific complaints and the attorney to respond accordingly. (Mendez, at pp. 1367-1368.)
The court in People v. Mejía (2008) 159 Cal.App.4th 1081, reached a similar result. During the probation and sentencing hearing, defense counsel told the court that the defendant wanted to make a motion for new trial “ ‘based in large part on [counsel’s] conduct at the trial,’ ” including his trial strategy. (Id. at pp. 1084-1085.) The Court of Appeal reversed and remanded for a Marsden hearing, ruling that defense counsel’s statements were adequate to put the court on notice that the defendant was requesting a Marsden hearing. (Mejía, at pp. 1086, 1088.) Defendant also relies on People v. Kelley (1997) 52 Cal.App.4th 568, 579-580, which concluded that a Marsden hearing was required where the defendant filed a written motion for new trial attesting that his attorney refused to let him testify and failed to subpoena or call several material witnesses, and set out in detail the materiality of the witnesses.
Similarly, in People v. Eastman (2007) 146 Cal.App.4th 688, 691-694, 699, the Court of Appeal concluded a Marsden hearing was necessary where the defendant had sought to withdraw a negotiated plea, contending that his defense had been inadequate and that his attorney had conspired with the prosecutor to persuade him to accept the plea offer, had misled and informed him falsely that his mother was going to testify against him, and had failed to investigate people and information the defendant had provided. In doing so, the court noted that the defendant had written a letter to the court asserting his attorney had failed to represent his interests adequately and that the letter had included at least one specific factual complaint: “that he was acting in cahoots with the district attorney when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him.” (Eastman, at p. 695.) Although the defendant had not expressly asked for new counsel, he did request an “ ‘adequate defense,’ ” and the Court of Appeal concluded that “his complaints set forth an arguable case that a fundamental breakdown had occurred in the attorney client relationship that required replacement of counsel.” (Id. at pp. 695-696.)
In each of these cases, the defendant made a clear, specific challenge to defense counsel’s competence or representation. Here, on the other hand, defendant did not challenge her counsel’s competence, and her only challenge to his trial strategy was that she had been dissuaded from testifying—a decision she had made on the record, after questioning by the trial court.
Where the defendant’s request is not clear, courts have found no Marsden hearing is required. Most recently, in Richardson, the defendant requested a new trial on various grounds, including that “defense counsel and the defense investigator persuaded defendant not to testify in his own behalf, and defense counsel ‘promised [defendant] that the worse [sic] case scenario would be a conviction for “Destruction of Property,” and instructed [defendant] to lie to the Court when asked if [defendant’s] decision not to testify was [his] own.’ ” (Richardson, supra, 171 Cal.App.4th at p. 482.) After receiving the request, the trial court appointed new counsel to investigate the claims, without relieving trial counsel, and the new counsel concluded there was no legal basis for a motion for new trial. (Id. at p. 483.) On appeal, the defendant contended that his requests were sufficient to trigger the court’s duty to conduct a Marsden hearing. (Richardson, at p. 484.) The Court of Appeal rejected this contention, concluding that under Dickey, there must be “ ‘ “ ‘ “at least some clear indication by defendant that he wants a substitute attorney” ’ ” ’ ” (Richardson, at p. 485, quoting Dickey, supra, 35 Cal.4th at pp. 920-921), and that defendant had made no request for substitute counsel, either orally or in writing (Richardson, supra, 171 Cal.App.4th at p. 485). In doing so, the court declined to follow Mendez and Eastman, noting that neither case had discussed the rule of law contained in Dickey. (Richardson, at p. 485.)
Division Two of the First Appellate District faced a related question in People v. Gay (1990) 221 Cal.App.3d 1065 (Gay). After being found guilty of second degree burglary, the defendant moved in propria persona for a new trial, claiming, among other things, ineffective assistance of counsel. The motion asserted that trial counsel had presented an inadequate defense in various ways, including by failing to investigate the case adequately and to call a witness. However, the defendant did not ask the court to appoint new counsel to prepare or argue the motion for new trial. (Id. at pp. 1067-1068.) The Court of Appeal in Gay, supra, 221 Cal.App.3d at pages 1068-1069, held that absent a request for substitute counsel, the trial court was not required to follow the procedures outlined in People v. Stewart (1985) 171 Cal.App.3d 388. In Stewart, the same court had ruled that where a defendant requests a substitution of new counsel to assist in the preparation of a motion for new trial based on the inadequacy of trial counsel, the trial court must elicit from the defendant the basis for the claim of inadequate representation, and determine whether it could fairly rule on the new trial motion or whether it should appoint new counsel to more fully develop the claim. (Stewart, at pp. 395-396.) The court in Gay distinguished Stewart based on the “key fact” that, unlike the defendant in Stewart, the defendant in Gay had never asked the trial court to appoint substitute counsel to present the new trial motion. (Gay, supra, 221 Cal.App.3d at p. 1069.) It rejected the argument that even in the absence of such a request, the court had a duty to make an inquiry to determine whether to appoint substitute counsel. (Id. at pp. 1069-1070.)
In People v. Smith (1993) 6 Cal.4th 684, 696, our Supreme Court “disapproved Stewart to the extent it suggested a defendant has a greater right at the later stage of a trial to substitute counsel under [Marsden]. The same standard applies equally preconviction and postconviction. ([Smith,] at p. 694.)” (People v. Bolin (1998) 18 Cal.4th 297, 346, fn. 16.)
We find the reasoning of Richardson and Gay applicable here. Nothing defendant said can reasonably be taken as a request either for substitute counsel or for separate counsel to prepare a motion for a new trial. Moreover, defendant did not make the sort of specific complaints found in the cases on which she relies. Defendant expressed at most a disagreement over trial tactics, something our Supreme Court has held “neither justifies substitution of counsel nor signals a fundamental breakdown of the attorney-client relationship.” (People v. Nakahara (2003) 30 Cal.4th 705, 719.) Finally, as we have discussed, the trial court inquired carefully into defendant’s decision to waive her right to testify, and she stated repeatedly that she had decided not to do so. In the circumstances, the trial court had no obligation to make further inquiries under Marsden.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.
The question of whether one who becomes unconscious as a result of ingesting prescription drugs according to directions, despite possible side effects of drowsiness, should be treated as being voluntarily or involuntarily intoxicated appears to be one of fact. In People v. Chaffey (1994) 25 Cal.App.4th 852, 854, the defendant took 120 or more Xanax tablets in an attempt to commit suicide. The Court of Appeal concluded the trier of fact could have found that the defendant’s resulting intoxication was not voluntary, although this result was not compelled. (Id. at pp. 855-858.) Similarly, our Supreme Court in People v. Baker (1954) 42 Cal.2d 550, 575, concluded that where a defendant had taken intoxicating medications in order to ward off an attack of epilepsy, the question of whether the imminent approach of an epileptic attack was sufficient to render the taking compulsive and thus involuntary was a question of fact for the jury.