Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. NCR67009
MORRISON, J.
A jury convicted Buster Lee Rhoads of first-degree murder and sustained three firearm enhancements. (Pen. Code, §§ 187, subd. (b); 12022.53, subds. (b)-(d).) The trial court sent him to prison for 50 years to life.
On appeal, defendant contends the trial court should have granted his motions to relieve appointed counsel. (See People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) We disagree.
On October 25, 2005, the matter came on for a plea and to set trial. Defense counsel entered a not guilty plea and advised the trial court (Garaventa, J.) that defendant wanted new counsel. At an in-camera hearing defendant stated that because his alleged victim was a woman and his lawyer was a woman, “I don’t think I’d have a fair representation.” The trial court pressed defendant for specifics but all defendant said was that, “I don’t think she can fairly represent me and be impartial to me on account of the case involving a woman.” After defendant conferred with his lawyer he said there “would be a breakdown in communication,” and complained that counsel had not visited him and he did not know if she had read the case files. Counsel stated she had spoken with defendant and had reviewed the evidence, apart from some discovery the People had just provided her. Judge Garaventa denied the motion.
On November 8, 2005, defendant waived a preliminary hearing in order to leave plea negotiations open.
On January 11, 2006, the first day of trial, defendant renewed his request for substitute counsel. He claimed counsel was neglecting his interests and not communicating with him, she lied to him, denied him access to papers, resisted his desire for her to call witnesses, and “she wants me to plead guilty, guilty, guilty.” He attributed her conduct to her prejudice against him because the alleged victim was a woman. Instead of doing her job—as he saw it—“she said you are not going to walk away from this free, and I’m not going to be able to convince a jury.” The court pointed out that that was not a lie if counsel believed the evidence was very strong, and it would be lying for counsel to sugar-coat the reality of the likelihood of a conviction.
Defense counsel responded in detail, discussing crime scene photographs she had tried to show defendant, and explaining that she had subpoenaed witnesses at defendant’s request but that she was not likely to call them, as “They do not add anything relevant in our defense. I do have several character witnesses subpoenaed.” She had frankly told the defendant the evidence against him was “extremely overwhelming” and that in her opinion he would be convicted on all charges unless he accepted a plea bargain.
The court (Murray, J.) noted that potential jurors had been waiting in the lobby, and expressed the view that the motion was an effort to delay the case. In any event, “while there is some assertion of a breakdown in communication, Counsel and the Defendant are communicating[;]” defendant simply did not like what his attorney was saying. Judge Murray denied defendant’s motion.
The trial was as short as a premeditated murder trial could be, occupying part of one volume of reporter’s transcript. To explain why defense counsel rationally believed defendant should have accepted a bargain, we recite the evidence in some detail.
A deputy sheriff testified that on September 1, 2005, defendant told him that about a week before he and his wife had argued about her affair with another man and he “placed the firearm to her head and threatened to harm her or kill her if he couldn’t have her.” A couple of days later the deputy went to the house as “a civil stand-by” to help defendant’s wife remove her property; at that time defendant said he had put a shotgun in her car, stating that if things did not go his way “He was going to shoot his wife and then shoot himself.”
Another deputy testified that on the morning of September 11, 2005, he was sent to the house. He and a sergeant entered and smelled burnt gunpowder. They cut the lock off of a bedroom door and found defendant’s wife, Lynn Rhoads, face down on the bed, dead.
A detective testified he was sent to investigate and found the victim had “massive head trauma” and an injury to the “webbing between her thumb and her finger.” He found notes on the bedspread. One instructed defendant’s granddaughter (Leanne Rhoads) to “be good and remember me,” and do well in school, then set out a purported will which began “I’m sorry for what I did. I can’t live without my wife,” and sought forgiveness. Another signed note, dated September 11, 2005, said he loved his wife and did not want to be parted from her, sought forgiveness and stated (inaccurately) “‘I won’t be taken alive.’” Defendant telephoned the house: “Essentially told me that he had planned on coming back to the residence after dropping his granddaughter off. However, Sheriff’s vehicles were already there. He wanted to know how they got there so fast. Stated he had killed his wife.” Around noon he called the detective again, stating his wife had admitted having an affair. “He told me that there was a note that would explain everything. He also told me that there was a tape recorder that he left in his vehicle that would explain more.” When defendant surrendered, a note was found in his car which said that he loved his wife and sought forgiveness for his actions. The detective found a .357 revolver, shells and a spent casing in the car.
Leanne Rhoads, aged 13, testified she had lived with defendant and his wife (the victim) for about three years. The victim moved out a few weeks before she was killed, and defendant told Leanne that the victim was having an affair. About a week before the killing defendant began taking Leanne on trips to try to catch the victim and her lover, stating his intention to “kill them both and himself.” She woke up on the day of the killing to find the victim and defendant talking outside the house about some bonds; they then went into the bedroom. Defendant then came out, got his gun, and told Leanne “‘good-bye,’ and ‘I love you.’” Leanne ran outside and hid, heard a gunshot, then defendant came out and told her “‘It’s okay. Everything’s all right. Come in.’” He claimed he had just hit the victim on the head and then shot the mattress, told Leanne to pack her things, then drove her to where her grandmother worked.
Leanne’s grandmother testified she was present when defendant audio-taped a purported will on September 9, 2005. The victim’s daughter testified defendant called her stating he had killed her mother and was going to kill himself, and to forgive him.
A sheriff’s lieutenant who had known defendant for 30 years talked defendant into surrendering. During one of their several telephone calls before the surrender, defendant threatened to kill his wife’s lover.
The lead detective interrogated defendant, who confirmed he was upset about his wife’s affair, that about a week before he had placed a gun to his wife’s head, that in the bedroom that day his wife confessed to the affair, that he got his gun; and that when he returned they struggled and as she pleaded with him, he cocked the gun, which went off.
A criminalist testified the victim was face down when she was shot, with the gun in contact with her head. A pathologist testified the hand wound was a contact wound across the surface of the skin and the head wound was a contact wound into the skull.
Defendant testified he had been married to the victim for 12 years but beginning in July 2005, his feelings towards her changed as he began to suspect she was unfaithful. They made plans to sell the house so she could buy a trailer and live separately. He denied making threats to kill her. He claimed they met for lunch, talked and had sexual intercourse shortly before the date he killed her and he had hopes they would reconcile. She was going to come to the house to finish signing some paperwork for the realtor and to help clean up the house so it could be shown to prospective buyers. When they were in the bedroom looking for bonds she began screaming about them, then turned, told him she was having an affair, then walked back to the bedroom. He got his revolver, “dropped two or three shells in it[,]” told Leanne to go outside, then went into the bedroom. He intended to kill himself, but as he raised the gun to his head the victim “hollered out and said, ‘I’m coming back.’ And she ran. She made a lunge for the gun as I was raising it up.” As they wrestled he heard “a poof” and fell back; he did not recall hearing two shots.
One of defendant’s friends testified defendant was a peaceful and honest person. Defendant’s supervisor at work testified defendant was honest.
The only plausible defense was one of provocation, that after weeks of stress due to the suspicions of an affair, when the victim confirmed it to defendant’s face, in the bedroom, he lost his reason and shot her. (See People v. Berry (1976) 18 Cal.3d 509, 513-516.) This would negate malice and reduce the crime to voluntary manslaughter. Instead, defendant pressed an accident defense which required the jury to discount the physical evidence, testimony by defendant’s granddaughter and the testimony of peace officers. The accident story did nothing more than undermine the provocation defense.
On these facts, counsel was quite right to try to get defendant to realize the futility of his claim of innocence, and during closing argument she pressed the provocation theme. At sentencing, the trial court commented that defendant “should know and realize that the jury knew he was lying, I knew he was lying, and frankly any reasonable, sensible person would know that he is lying. He does nothing more than embarrass himself with his version of the facts in this case.”
Thus, trial counsel’s assessment of the case was brutally honest and accurate, and although defendant did not want to hear it, the evidence does not establish a breakdown in communications sufficient to require replacement of appointed counsel. Indeed, the record showed counsel tried to present a plausible defense, only to be stymied by defendant’s insistence on lying on the stand in his effort to escape all liability. The fact that defendant disagreed with counsel and did not trust her did not show that she was unable to perform effectively or that there was a conflict which would result in incompetent representation. (See People v. Cole (2004) 33 Cal.4th 1158, 1190 (Cole); People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on other grounds, People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Appellate counsel lists actions trial counsel did or did not take and suggests this shows defendant had good reason to question trial counsel’s competence. Those points fall within the realm of reasonable tactical decisions, given that this was an open and shut case. For example, what would a preliminary hearing have added? What pretrial motions would have helped the case? The admission of defendant’s recent prior threats against the same victim was inevitable, despite appellate counsel’s claim to the contrary. A motion to exclude them would have been futile. (People v. Goldbach (1972) 27 Cal.App.3d 563, 569-570.)
Presiding Justice Robert Gardner’s words seem apt here:
“The fact that trial counsel has been unsuccessful in those cases which come before us is usually no reflection on that attorney. It is very difficult to secure an acquittal when the district attorney has all the firepower. A true legal genius, a trial lawyer who combines the attributes of Daniel Webster, Clarence Darrow and all those currently popular advocates who write books about themselves, cannot do more in some cases except to insure that his client’s legal rights are protected and that he gets a fair trial. . . . Some defendants simply are guilty, and their guilt can be overwhelmingly established by legally admissible evidence while at the same time giving full recognition to their legal and constitutional rights.
“Nevertheless, these attacks on trial counsel continue with monotonous regularity. It is understandable that the individual defendant, faced with unpleasant consequences of his own irresponsible behavior and being affected with man’s notorious reluctance to admit error or to face up to his own mistake, will strike out blindly at all who had anything to do with his predicament — witnesses, victims, judges, prosecutors, jurors, the whole law enforcement and judicial process — and, unfortunately, his own attorney. However, the frequency with which appellate counsel present this issue is distressing. After all, appellate counsel is blessed with the gift of hindsight as he leisurely picks over the carcass of a dead lawsuit. He is not confronted with the minute to minute and second to second strategic and tactical decisions which must be made by the trial lawyer during the heat of battle. There is nothing in [the right to counsel at trial or on appeal] which says that an appellate attorney should abdicate his responsibilities as a professional man and become the lackey of his client. It is the lawyer, not the client, who after a review of the record, chooses the issues. Doctors do not allow patients to diagnose their own ailments, and self-help brain surgery is quite rare. Just because a convicted defendant is unhappy with his trial representation does not mean that counsel on appeal must maintain a full scale attack on trial counsel.” (People v. Eckstrom (1974) 43 Cal.App.3d 996, 1001-1002.)
Appellate counsel wisely does not press defendant’s trial-court claim that he was entitled to be represented by a male attorney. Because the record does not show a breakdown in the attorney-client relationship, merely defendant’s dissatisfaction with trial counsel’s rational, competent advice, the trial court judges did not abuse their discretion in denying defendant’s Marsden motions. (Cole, supra, 33 Cal.4th at p. 1190.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P.J., CANTIL-SAKAUYE , J.