Opinion
F069406
02-08-2017
THE PEOPLE, Plaintiff and Respondent, v. AARON RUFFIN, Defendant and Appellant.
Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Jamie A. Scheidegger and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF152103C)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Jamie A. Scheidegger and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Aaron Ruffin of attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); assault with great bodily injury (§ 245, subd. (a)(4); count 3); second degree robbery (§ 212.5, subd. (c); count 4); and misdemeanor delaying a peace officer (§ 148, subd. (a)(1); count 5). The jury found true that he personally inflicted great bodily injury (§ 12022.7, subd. (a); counts 1-4) and he personally used a deadly or dangerous weapon (a knife) (§ 12022, subd. (b)(1); counts 1, 3 & 4). He was sentenced to an aggregated prison term of 13 years.
All future statutory references are to the Penal Code unless otherwise noted.
On appeal, appellant raises claims of instructional error regarding his conviction for attempted murder. He also contends the trial court conducted an inadequate hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) following a posttrial complaint that his trial counsel failed to present DNA evidence. Finally, he argues he received constitutionally ineffective assistance of counsel.
We reject appellant's contentions regarding instructional error. However, we find merit to his claim that an inadequate Marsden hearing occurred. Accordingly, we conditionally reverse the judgment and remand for a new hearing without addressing the claim of ineffective assistance of counsel.
FACTUAL BACKGROUND
Appellant did not present any trial evidence. Below is a relevant summary of the prosecution's case.
A. The victim.
In the early morning hours of September 4, 2013, Bryan Ponsen was found unconscious on the sidewalk next to the federal courthouse in Bakersfield, California. He had been beaten. He was transported to a local medical center with head trauma, blood coming out of his mouth, and three puncture wounds. The three puncture wounds were bleeding and located on his upper back near the shoulder blades. Two of the punctures were two inches deep and the other was three inches deep. Some of the puncture wounds had extended into a lung, collapsing it. He had some undefined injury to his right knuckles. He had a significant amount of bleeding in his brain. He was placed on life support.
Neither medical personnel nor law enforcement found a knife with Ponsen. Police reviewed video footage from the courthouse and a nearby restaurant. A female, later identified as Tashina Hughey, appeared in both videos. Police believed she might frequent that area, and they searched for her. On the same morning as Ponsen's attack, police located Hughey and brought her in for questioning.
B. Hughey's statements to police.
An interviewing detective observed a small cut above Hughey's hairline. Prior to the incident at the federal courthouse, she said she had an altercation with Ponsen near a taco stand. He had propositioned her for sex and had taken items from her. She claimed he injured her on her forehead. After the altercation with Ponsen, Hughey made contact with Wilbert Robinson and appellant. She described Robinson as her boyfriend and fiancé. She described appellant as "her protector." The three of them encountered Ponsen at the courthouse. Robinson did the initial confrontation. Appellant and Robinson yelled they were going to "Whoop his" and then they started fighting. She said appellant joined the fight after Robinson slipped. She took two of Ponsen's bags.
Without confirming it was a knife, Hughey believed Ponsen had held something in his hand during the fight. She thought Robinson had held a knife. Robinson was hitting and kicking Ponsen. At the beginning of the interview, she said Robinson had stabbed Ponsen. At some point during the interview, she said she did not want "to put a case on" her boyfriend. At another point she said she did not "want to put a case on her friends." Towards the end of the interview, she said it was appellant who did the stabbing. After the incident ended, she claimed appellant told Robinson that Robinson "should not have slit [Ponsen's] throat."
C. Appellant and Robinson are arrested.
Law enforcement located and arrested Robinson later on the same day of the assault. He had a "utility knife" in his possession, which was seized. The blade was about three inches long and almost an inch wide. Approximately the next day, police took photographs of Robinson's legs and bare torso, which were shown to the jury. Other than a "rash or abrasion" on the "inner elbow portion" of his right arm, he did not appear to have any injuries.
Appellant was located the day after the attack. He was arrested after giving a false name to police. An officer found and seized a knife inside a sheath which was attached to appellant's belt. Black gloves were found in his pocket. In the video from the nearby restaurant, it appeared that appellant may have been wearing gloves on his hands immediately after Ponsen's assault. A stain was seen on appellant's pants and shirt. Subsequent testing showed it was human blood. Although law enforcement requested DNA analysis in this case, no DNA results were introduced into evidence. Appellant was photographed while he wore only boxer shorts. He did not appear to have any cuts or abrasions.
D. Hughey's trial testimony.
Hughey testified at trial pursuant to a plea agreement. She pled to an unspecified felony conviction, which she understood was a strike offense, and she received "substantially less time" than she was originally facing as a codefendant in the present matter. She admitted she was convicted of an unspecified felony offense almost a year prior to her trial testimony.
Hughey told the jury that Ponsen attacked her on a street early in the morning of September 4, 2013. He tried to drag her to a dark secluded alley. She ran away but he pursued her. He punched her and she fought back, but he stabbed her in the forehead with an unknown object. She suffered a gash. He took her "tablet" and smart phone before running away.
After the attack, Hughey found appellant and Robinson. She told the jury that Robinson was her fiancé and appellant was a friend. She told the two men what had happened with Ponsen. She claimed blood was coming down her face. The two men were mad because she had been attacked. Robinson ran in one direction and appellant ran in another direction. The three met each other again and appellant reported that he had just talked to somebody who he believed "might be the person." With appellant leading the way, they ran to that person's location.
The three found Ponsen near the federal courthouse. Hughey told the jury she saw all three men with knives. Robinson approached Ponsen, asking about Hughey's belongings and what had happened. Ponsen yelled that he did not do anything, and he swung at Robinson. Ponsen had "something" in his hand and he cut Robinson. They fought. Hughey confirmed that Robinson had his knife out, which he usually carried in the pocket of his pants, but she claimed Robinson never did anything with it. Appellant joined the fight after Robinson was cut. Hughey said it was appellant who stabbed Ponsen when appellant was dragging him to the ground. She described appellant's knife as a long dagger. Hughey saw both appellant and Robinson "stomping" Ponsen. She said Robinson stomped Ponsen after appellant "got him to the ground" and was stabbing him. While the fighting was occurring, Hughey took a bag belonging to Ponsen to get her "stuff" back. She denied telling appellant or Robinson that she was going to take Ponsen's property. She found her things in the bag, which also contained some of Ponsen's possessions. After the altercation, she gave the bag to Robinson. She denied that appellant ever possessed Ponsen's bag.
E. The courthouse video.
The video from the federal courthouse appears without sound, and it captured only a portion of the crime because the camera in question was set to pan and rotate. The date and time stamp indicated on the camera's image were accurate. The courthouse video was played for the jury.
In the video, Ponsen first appears next to the courthouse at approximately 12:43:55 a.m. He stops, stands on the sidewalk, and occasionally goes through his pockets and bags. At about 12:53:04 a.m., the video shows a man facing Ponsen and apparently speaking with him. When the camera pans back at 12:53:35, this man is gone. About two minutes later, at around 12:55:38 a.m., two men and a woman approach and confront Ponsen. At trial, Hughey confirmed she was the woman appearing in the video, and Robinson first walked up to Ponsen. Appellant stands nearby. Appellant appears to be the same man who approached Ponsen two minutes earlier.
At 12:55:41 a.m., Robinson appears to reach for something in or near his right hip as he faces Ponsen. One second later, as the camera pans away, Robinson is seen moving towards Ponsen while Hughey and appellant stand nearby watching. When the camera returns to this area at 12:56:04 a.m., appellant is grappling with Ponsen, and appellant appears to be striking Ponsen from behind while Robinson is watching. Based on the poor quality of the video, it is impossible to see if appellant has anything in his hands.
At 12:56:06 a.m., appellant pulls and throws Ponsen onto the sidewalk. Ponsen does not appear to be resisting. As Ponsen falls to the ground, Robinson is seen walking towards him. At 12:56:08 a.m., both Robinson and appellant are on top of Ponsen. Robinson appears to strike and kick Ponsen, who does not appear to be resisting. Based on the camera angle, it is impossible to see appellant's specific actions. While this is happening, Hughey walks to Ponsen's belongings. She picks up a bag and walks away.
At 12:56:34 a.m., Ponsen is lying motionless on the sidewalk. Appellant is standing a few feet away while Robinson is stomping his left foot onto Ponsen's head. At 12:56:37 a.m., the two men walk away from Ponsen, who lies motionless.
DISCUSSION
I. The Trial Court Did Not Err In Giving CALCRIM No. 3472.
Appellant contends CALCRIM No. 3472 misstates the law. CALCRIM No. 3472 instructs that "[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." He argues the jury was precluded from considering imperfect self-defense or defense of another because the trial court used this instruction. He claims he was prejudiced and his attempted murder conviction must be reversed.
A. Background.
1. Jury instructions.
The following relevant jury instructions were given.
a. CALCRIM No. 604:
"An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if [appellant] attempted to kill a person because he acted in imperfect self-defense or defense of another." The jurors were told to find appellant not guilty of any crime if they concluded appellant acted in complete self-defense or defense of another. "The difference between complete self-defense or defense of another and imperfect self-defense or defense of another depends on whether [appellant's] belief in the need to use deadly force was reasonable."
The jury was told that imperfect self-defense or defense of another existed if: (1) appellant took at least one direct but ineffective step toward killing a person; (2) appellant intended to kill when he acted; (3) appellant believed he or someone else was in immediate danger of being killed or suffering great bodily injury; and (4) appellant believed immediate use of deadly force was necessary to defend against the danger, but at least one of appellant's beliefs was unreasonable.
The jury was to consider all of the circumstances as they were known and appeared to appellant in evaluating his beliefs. The prosecution had the burden of proving beyond a reasonable doubt that appellant was not acting in imperfect self-defense. "If the People have not met this burden, you must find [appellant] not guilty of attempted murder."
b. CALCRIM No. 3471:
The jury was told three requirements were necessary for appellant to claim self-defense if he engaged in mutual combat or started a fight: (1) he acted in good faith and tried to stop fighting; (2) he indicated by word or conduct to his opponent in a way a reasonable person would understand that he wanted to stop fighting and he had stopped fighting; and (3) he gave his opponent a chance to stop fighting. "However, if [appellant] used only non deadly force and the opponent responded with such sudden and deadly force that [appellant] could not withdraw from the fight, then [appellant] had a right to defend himself with deadly force and was not required to stop fighting, or communicate the desire to stop ... to the opponent or give the opponent a chance to stop fighting."
c. CALCRIM No. 3472:
"A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force."
The trial court read verbatim this form instruction.
d. CALCRIM No. 3474:
"The right to use force in self-defense or defense of another continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends."
2. Closing arguments.
The prosecutor and defense attorney made the following relevant comments during closing arguments.
a. The prosecutor's initial arguments.
During the prosecutor's initial arguments, he reviewed the trial evidence with the jury and played back the video showing the attack. The prosecutor emphasized that appellant walked up to Ponsen at the courthouse. They exchanged apparent words and appellant left. Appellant, Robinson and Hughey then returned several minutes later and confronted Ponsen. The attack started. Appellant could be seen "just actively wailing on [Ponsen]." Appellant was then seen taking Ponsen to the ground, and both appellant and Robinson were on top of him. Hughey could be seen taking Ponsen's bag of belongings. The three walk away, leaving Ponsen lying unconscious on the sidewalk.
The prosecutor went through the elements of each charged count and the enhancements. He went through the evidence and argued appellant was guilty of attempted murder in count 1, along with enhancements for great bodily injury and personal use of a weapon. In doing so, the prosecutor did not rely on aiding and abetting as a theory of liability for attempted murder. Instead, the prosecutor contended that appellant stabbed Ponsen multiple times and severely beat him.
When discussing count 2, assault with a deadly weapon, the prosecutor argued self-defense was not present because appellant confronted Ponsen first, left, and returned with his friends. Ponsen was not seen in the video attacking. Instead, he "was getting wailed on" before he was on the ground. The prosecutor emphasized that, before the attack, appellant "yelled out something to the effect of, there's about to be a whoopin." He argued the video did not support a self-defense claim.
The prosecutor read CALCRIM No. 3472 to the jury. The prosecutor argued, "So you can't start a fight and then claim, 'Oh, self-defense. Now I just get to wail on this guy. I get to stab him.' No, no, no, no. Under the law that is not appropriate. You can't start a quarrel and then claim self-defense. It's just not an appropriate excuse."
The prosecutor went through the lesser included offenses for each charged count. Regarding attempted murder, the prosecutor explained why "heat of passion" did not reduce count 1 to attempted voluntary manslaughter. The prosecutor then argued why imperfect self-defense or defense of others was not present. "As I've already kind of gone over, when someone has a right to self-defense or defense of someone else, here we just don't have that. There's no right to start a quarrel or a fight and then claim self-defense. You just don't have that here. And for the reasons I've previously articulated about the self-defense, they don't apply here. And so that lesser included would not apply."
b. Defense counsel's arguments.
Appellant's defense counsel focused on the inconsistencies in Hughey's statements regarding the incident. He noted she originally said her fiancé did it, but her story changed until she testified in court that it was appellant who stabbed Ponsen. Defense counsel argued it was not possible to see a knife in the video. Although it was clear Ponsen was stabbed, the video did not help, and Hughey "has a good reason to protect [Robinson]. That's her fiancé. She has a reason to lie for him."
At times, defense counsel erroneously referred to Hughey as "Ms. Tooey" during closing arguments.
Defense counsel asked the jury to consider "heat of passion" as a lesser included offense if they thought it was appropriate to assign "responsibility" for Ponsen's attack. Defense counsel noted how quickly Ponsen was attacked after Hughey reported the assault to appellant and Robinson. Defense counsel contended the men did not intend to rob Ponsen. It was possible Robinson yelled "a whopping" or nobody made that statement. Defense counsel emphasized that Robinson appeared more aggressive than appellant in the video.
Defense counsel argued that Ponsen had bruises on his knuckles, which showed Ponsen defended himself. Hughey reported that Ponsen threw the first blow. Ponsen produced "a sharp instrument" and Robinson responded. It was at that point appellant stepped in. "And there's where I ask you to consider attempted voluntary manslaughter regarding self-defense."
c. Prosecutor's final arguments.
During the prosecutor's final arguments, he contended, in part, that appellant did not act in self-defense. He asked the jury to look at Ponsen's posture and positioning in the video, noting Ponsen was not fighting or resisting. It was appellant who actively attacked Ponsen after going "back to get reinforcements." The prosecutor also noted appellant fled the scene, which went against a self-defense claim. When approached by police the next day, appellant gave a false name. "Because he knows he's guilty. He just tried to kill [Ponsen]."
B. Standard of review.
Instructional errors are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570; People v. Jandres (2014) 226 Cal.App.4th 340, 358.) We must review the challenged instruction in the context of the trial record and the instructions as a whole. (People v. Houston (2012) 54 Cal.4th 1186, 1229.) We ask "whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. [Citation.]" (Ibid.) We must presume the jurors are "intelligent and capable of understanding and applying the court's instructions." (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
C. Analysis.
Relying primarily on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), appellant argues the trial court prejudicially erred in giving CALCRIM No. 3472, contending it misstates the law. He claims the prosecutor's argument to the jury reinforced the erroneous instruction. Without this instruction, he contends there was a "reasonable probability" he would have been convicted of attempted voluntary manslaughter. He asserts he did not forfeit this issue on appeal despite not raising it below because the trial court had a sua sponte duty to instruct the jury accurately. In contrast, respondent argues appellant forfeited this claim on appeal by not objecting below, CALCRIM No. 3472 does not misstate the law, and any error was harmless.
We need not resolve the dispute regarding whether or not appellant forfeited this claim on appeal. When we presume no forfeiture occurred, appellant's claim fails on its merits.
The parties agree, as do we, that a defendant does not lose the right to self-defense just because the defendant starts an altercation. (Ramirez, supra, 233 Cal.App.4th at p. 943.) In Ramirez, the appellate court addressed a similar challenge to CALCRIM No. 3472. There, two codefendants provoked a fistfight with rival gang members. (Ramirez, supra, 233 Cal.App.4th at p. 944.) One of the defendants fatally shot a rival. He claimed to have done so in self-defense because the rival drew a gun. (Id. at p. 945.) The trial court instructed the jury with CALCRIM Nos. 3471 and 3472. (Ramirez, supra, at pp. 945-946.) During closing argument, the prosecutor argued the defendants had forfeited any claim of self-defense by using nondeadly force to start the fight, regardless of whether the victim escalated the conflict to a deadly one. (Id. at p. 947.) The prosecutor stressed it did not matter whether the victims escalated the conflict to a deadly fight. (Id. at p. 946.) She "repeatedly emphasized" that argument. (Id. at p. 950.) A divided appellate court reversed convictions for first degree murder. (Id. at p. 943.)
The Ramirez majority held that "CALCRIM No. 3472 states a correct rule of law in appropriate circumstances." (Ramirez, supra, 233 Cal.App.4th at p. 947.) For example, a victim may respond to an initial assault with a counterassault, and the attacker who provoked the fight may not claim self-defense against the victim's lawful resistance. (Ibid.) However, "under the facts before the jury," the "blanket rule" in this instruction "did not accurately state governing law." (Ibid.) Ramirez determined that, essentially, "the prosecutor and the trial court advised the jury that one who provokes a fistfight forfeits the right of self-defense if the adversary resorts to deadly force." (Ibid.) This was erroneous as a matter of law because a party initiating a fight does not forfeit the right to live. (Ibid.) Ramirez found fault with the wording of CALCRIM No. 3472 because it "made no allowance for an intent to use only nondeadly force and an adversary's sudden escalation to deadly violence." (Id. at p. 945.) During rebuttal arguments, the prosecutor emphasized that the plain words of CALCRIM No. 3472 precluded any claim of self-defense or mitigation of murder to voluntary manslaughter where the defendant honestly but mistakenly believed the immediate use of deadly force was necessary to defend himself or others. (Id. at p. 948.) "The instructions and the prosecutor's argument established as a matter of law that defendants were not entitled to imperfect self-defense if they contrived to use any force, even nondeadly force, but that was a question for the jury to decide on its own evaluation of the facts. [Citations.]" (Id. at p. 953.)
Here, the trial court instructed the jury with CALCRIM No. 604 regarding the difference between complete self-defense/defense of another with imperfect self-defense/defense of another. The jury was instructed regarding when and how to apply those defenses. With CALCRIM No. 3474, the jury was instructed that "[t]he right to use force in self-defense or defense of another continues only as long as the danger exists or reasonably appears to exist. [¶] When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends."
During closing arguments, the prosecutor emphasized that Ponsen never fought back and he offered no resistance. It was the prosecution's theory that Ponsen never presented a danger to appellant. Unlike in Ramirez, we find no reasonable likelihood the jurors understood the prosecutor to be saying appellant forfeited his right to self-defense or defense of another. Ramirez has no application to the present matter when the prosecutor's whole argument and the instructions are examined. Based on this record, the trial court did not err in giving CALCRIM No. 3474. Accordingly, this claim fails.
II. The Trial Court's Presumed Error In Failing To Instruct On Self-Defense Or Defense Of Another Did Not Cause Prejudice In Count 1.
Appellant asserts the trial court failed to instruct properly on complete self-defense or defense of another regarding the attempted murder charge. When instructing on these defenses, the trial court did not state they applied to the attempted murder charge. Appellant seeks reversal of count 1.
A. Background.
In addition to the jury instructions discussed previously, the trial court provided the following relevant instructions.
1. CALCRIM No. 362.
The jury was told that appellant's false statements before trial relating to the charged crime, knowing the statement was false or intending to mislead, could show he was aware of his guilt. The jury was to decide if appellant made such a statement, and to determine its meaning and importance. The jury was cautioned that such evidence could not establish guilt by itself.
2. CALCRIM No. 372.
The jury was told that appellant's flight after the crime "may show he was aware of his guilt." The jury was to decide if appellant fled, and the meaning and importance of that conduct. However, this evidence could not prove guilt by itself.
3. CALCRIM No. 3470.
The court stated that self-defense was "a defense to assault with a deadly weapon and assault with force likely to cause great bodily injury." (Italics added.) The court explained appellant was not guilty "of those crimes if he used force against the other person in lawful self-defense or defense of another." (Italics added.) The court reviewed the requirements for self-defense/defense of another, and explained that the prosecution had the burden of proving appellant did not act in lawful use of such a defense.
B. Analysis.
Appellant argues Ponsen stabbed Hughey shortly before the courthouse fight and Ponsen displayed a knife when the three confronted him at the courthouse. He asserts Ponsen swung a weapon at Robinson, cutting him. He maintains the video cannot be relied upon to exclude self-defense or defense of others because of its extensive gaps in coverage, especially at the beginning of the fight.
The parties dispute whether the trial court was obligated to instruct the jury regarding self-defense or defense of another for the attempted murder charge, and, if so, whether the trial court erred regarding this instruction. The parties dispute the appropriate standard of review to use to determine prejudice and whether prejudice resulted. Appellant contends his right to an instruction on an affirmative defense is protected under the Fourteenth Amendment, which triggers review under Chapman v. California (1967) 386 U.S. 18 (Chapman). Chapman requires the People to prove that the error was harmless beyond a reasonable doubt. (Id. at p. 24.) In contrast, respondent asserts the state standard under People v. Watson (1956) 46 Cal.2d 818 (Watson) is appropriate. Under Watson, we ask whether it is reasonably probable the defendant would have obtained a more favorable result in the absence of the error. (Id. at p. 836.)
We need not address the parties' disputes regarding: (1) whether substantial evidence existed to support an instruction on self-defense or defense of another as to the attempted murder charge; (2) whether the trial court adequately instructed the jury in this regard; or (3) the appropriate standard of review. Under either standard, a review of this record establishes that any presumed error was harmless.
With CALCRIM No. 3474, the jury was instructed that the right to use force in self-defense or defense of another "continues only as long as the danger exists or reasonably appears to exist. [¶] When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends." Although the video has poor quality and unfortunate gaps, the video shows appellant returning to Ponsen's location with Robinson and Hughey. Appellant is seen striking Ponsen, who is not resisting. At no time in the video is a knife visible in Ponsen's possession, and law enforcement did not locate a knife on or near Ponsen when he was found unconscious on the sidewalk. After the attack, appellant did not summon help for Ponsen, but fled the scene. When approached by police the next day, appellant gave a false name. Injuries were neither seen on appellant nor Robinson.
Based on this record, the court's failure to instruct regarding self-defense or defense of another was not prejudicial in count 1. It is beyond a reasonable doubt this failure did not contribute to appellant's conviction of attempted murder. Accordingly, this claim fails. III. An Inadequate Marsden Hearing Occurred.
Appellant contends that the trial court conducted an inadequate Marsden hearing regarding his complaint that his trial counsel failed to present favorable DNA evidence. He seeks reversal of the judgment against him.
A. Background.
Postverdict, appellant filed a Marsden motion contending, in part, that his trial counsel had failed or refused to present evidence critical to his defense. The trial court held a hearing. Appellant complained that "DNA results" were not introduced at trial, noting he had heard that blood was on his clothes and on the knife. He said his counsel "refused." The trial court asked defense counsel for a response. The following short exchange occurred:
"[DEFENSE COUNSEL]: Your Honor, I did not receive DNA results. I was told by the D.A. that he did not have any discovery to give me, but he told me he talked to the lab and said that.
"I have since received those results. And it's correct, there's nothing on the knife. And I think the blood spots on him were not blood -- or at least they weren't the victim's. I can't recall, but -- and I did get those results, but -- and they were favorable to him. But I didn't receive it until like two, two or three weeks. And that was one of my plans initially to not waive time so we'd -- because I thought we would beat the DNA case if they were negative results. And I succeeded. And apparently the D.A., I think like the last day, told me he received, but he didn't have any paperwork to give me.
"THE COURT: So this was a defense strategic decision.
"[DEFENSE COUNSEL]: Yes."
Appellant then claimed defense counsel failed to call a particular trial witness. After hearing and discussing that issue, which is not relevant to the present appeal, the court stated it did not find a basis to grant appellant's motion. The Marsden motion was denied.
B. Standard of review.
The denial of a Marsden motion is reviewed for an abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.) To establish an abuse of discretion, the defendant must show that his or her right to assistance of counsel was substantially impaired. (Ibid.) In examining prejudice for the erroneous denial of a Marsden motion, we ask whether it is "'beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant's conviction.'" (People v. Sanchez (2011) 53 Cal.4th 80, 92, quoting Marsden, supra, 2 Cal.3d at p. 126.)
C. Analysis.
Appellant contends the trial court should have inquired why trial counsel did not present the favorable test results to the jury. In contrast, respondent asserts the trial court afforded appellant an adequate Marsden hearing, and defense counsel made a tactical decision. Respondent also contends this motion was made when the jury trial had already concluded. Appellant did not request a new trial, and nothing indicated that appointed counsel could not provide adequate representation in future hearings. We find appellant's contention persuasive and reject respondent's arguments.
In conducting a Marsden hearing, the trial court must ascertain the nature of the defendant's allegations and decide whether the allegations have sufficient substance to warrant replacement of defense counsel. The trial court must give the defendant an appropriate opportunity to set forth the complaints regarding counsel's representation and allow counsel to respond. (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.)
Here, appellant questioned why DNA results were not introduced at trial, noting he had heard that blood was on his clothes and on the knife. He said his counsel "refused." Appellant articulated the basis for his request to appoint new counsel and he related a specific instance of counsel's alleged deficient performance.
Defense counsel explained why he did not initially pursue the DNA evidence because it was believed the results would be inculpatory for appellant. The matter was pushed to trial as soon as possible. Defense counsel, however, subsequently learned that the DNA results were "favorable" to appellant. Based on this sparse record, however, it is not clear when counsel first learned of the results. He stated, "But I didn't receive it until like two, two or three weeks." He also referenced "the last day," which apparently referred to the last day of trial, but that was never clarified. It is also unclear from this record whether the DNA results involved both appellant's clothing and knife, whether the results were inconclusive or showed another person's DNA, and why this evidence was not sought for trial.
Respondent argues defense counsel made a tactical decision. However, defense counsel never gave an explanation why these results were not introduced into evidence. In the absence of any explanation, we reject respondent's argument that a tactical decision appears in this record. As appellant noted in his briefing, defense counsel could have requested a copy of a written report and/or he could have subpoenaed an appropriate witness to testify about the results. If necessary, a trial continuance could have been sought.
The rule requiring a Marsden hearing applies equally posttrial. When a proper showing has been made at any stage, the trial court should appoint substitute counsel, which could involve presentation of a new trial motion, because a defendant is entitled to competent representation at all times during the proceedings. (People v. Smith (1993) 6 Cal.4th 684, 695.) As such, we reject respondent's arguments that the jury trial had already concluded, appellant did not request a new trial, and nothing indicated that appointed counsel could not provide adequate representation in future hearings.
Based on the cursory exchange that occurred during the Marsden hearing, we cannot conclude beyond a reasonable doubt that the alleged denial of effective assistance of counsel did not contribute to appellant's conviction in count 1. We also cannot rule out that possibility. Accordingly, the judgment is conditionally reversed and the matter remanded for another hearing. We take no position on whether the Marsden motion should be granted or not.
In light of the remand for another Marsden hearing, we will not address appellant's final claim that his counsel rendered ineffective assistance of counsel. --------
DISPOSITION
The judgment is conditionally reversed and the matter remanded to the trial court with the following directions: (1) the court shall conduct a Marsden hearing limited to addressing appellant's concerns regarding the DNA results. The court shall seek information from counsel regarding (a) whether DNA testing occurred on appellant's clothes and/or knife, (b) when defense counsel first learned of the DNA results, (c) the nature of the results, and (d) counsel's reasons for not producing those results at trial; (2) if appellant makes a prima facie showing of ineffective assistance of counsel, the court shall grant appellant's Marsden motion and appoint new counsel to assist him for any appropriate posttrial motions; (3) if no such posttrial motions are filed within 60 days of new counsel being appointed, or if appellant's Marsden motion is denied, then the court shall reinstate the judgment, which shall stand affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
KANE, J. /s/_________
FRANSON, J.