Opinion
E050707 Super.Ct.No. FSB804246
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO MANUEL SALCIDO, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Fernando Manuel Salcido guilty of two counts of committing a lewd or lascivious act upon a child who is under the age of 14 years. (Pen. Code, § 288, subd. (a).) As to both counts, the jury found true the allegation that defendant committed the offenses against more than one victim. (Pen. Code, § 667.61, subds. (b) & (e)(4).) The trial court sentenced defendant to prison for an indeterminate term of 30 years to life. Defendant raises two contentions on appeal. First, defendant asserts the trial court violated his due process rights by admitting evidence of uncharged prior acts. (Evid. Code, § 1108.) Second, defendant contends the trial court violated his sixth amendment right to counsel by failing to adequately inquire into defendant's reason for requesting substitute counsel. We affirm the judgment.
All subsequent statutory references will be to the Penal Code unless indicated.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Defendant and R. married in March 2003. At the time of the wedding, R. had two daughters, T. and M.—defendant was their stepfather. Defendant and R. had one daughter together, G. At the time of defendant's trial in February 2010, M. was 11 years old, T. was 10 years old, and G. was six years old.
On October 26, 2007, R. was at home, in Colton, reading, when M. came to speak to her. M. told R. that defendant did something with his tongue on her genitalia,when M. was five years old. R. reported the incident to the police. Approximately one year later, T. and M. told R. that, when they were in a department store, G. kissed a mannequin's genital area. R. took G. to the Children's Assessment Center to be interviewed.
The record reflects R. demonstrated defendant's tongue action to the jury; however, the demonstration is not described in the record.
B. M
When M. was five years old, she lived in San Bernardino with R., defendant, and T. One day, she was at home watching "Cinderella"; R. was at the grocery store. Defendant told M. to go into his bedroom, and she did. Defendant told M. to take off her jeans and underwear. Defendant orally copulated M. Defendant then gave M. a chocolate bar, and told her not to tell R. what had happened.
Defendant told San Bernardino Police Detective Darren Means that he "kissed" M.'s vaginal area because M. had asked R. why defendant did not kiss her genitals, and M. was begging him to kiss her genital area. R. and M. told defendant that "it was okay for him to do that," so he complied. R. denied instructing defendant to kiss M.'s genitals.
C. G
One day, R., M., and T. were either sleeping or watching television in the girls' bedroom, and G. went into defendant's bedroom to sleep. Defendant's bedroom door was closed while G. was in the room. Defendant and G. were playing in the room when defendant told G. that he was going to lick her and she should not tell her mom about it. Defendant pushed G. down on the bed so that she was lying down. Defendant held G. down by holding onto her abdomen area; she was unable to get up. Defendant removed G.'s pants and underwear. Defendant orally copulated G.
G. said, "'Mommy,'" and R. knocked on the bedroom door. Defendant put G.'s clothes back on her, as R. knocked at the door. Defendant told G. that if she told R. about the incident, he would take away G.'s dog.
D. PRIOR ACT
At the time of trial in this case, Clarissa was 34 years old. Defendant is Clarissa's biological father. In 1981, when Clarissa was six years old, defendant began touching her breasts and genitals. At times, defendant would pinch Clarissa's breasts; he told Clarissa that he pinched them "so they would grow." Eventually, the touching progressed to defendant orally copulating Clarissa, defendant forcing Clarissa to orally copulate him, and defendant forcing Clarissa to engage in sexual intercourse with him. The sexual acts continued until Clarissa was 12 years old, and took place once to several times per week.
Clarissa did not tell anyone about defendant's sexual behavior because defendant physical abused Clarissa and her mother. Clarissa felt that her mother could not defend herself, so she would not be able to defend Clarissa. Defendant and Clarissa's mother divorced around 1990. After the divorce, Clarissa told her mother about defendant's sexual acts. In 1996, Clarissa wrote a letter to defendant accusing him of raping her and asking how he could do such a thing to his child. In 2009, R. found the letter in a closet at her home, inside a bag.
E. DEFENSE
Martha met defendant in 1995. After knowing each other for awhile, Martha and defendant began dating, and then moved in together. Martha had three children that lived with her and defendant. Martha's children were 14 years old, 10 years old, and seven years old. The seven-year-old child was a boy. Martha and defendant lived together for approximately four years. Martha never saw defendant act inappropriately with the children.
Juana was Martha's sister. Juana visited with her sister and defendant at least once per week for approximately five years, beginning in 1995. Juana observed defendant around children, and felt, "he would always be just normal, just like all the other adults." Defendant admitted to Juana that he kissed his daughters' vaginas, because R. insisted that he do so. After defendant's admission, Juana still believed defendant was "appropriate around children."
Socorro is Martha's mother. Defendant lived in Socorro's house for approximately four years, beginning in 1994. Socorro had eight grandchildren that would visit the residence. Defendant did not show an unusual interest in the children, and he did not interact with them much.
Teresa is Martha's aunt. Teresa met defendant around 1996 or 1997. Teresa saw defendant at two family get-togethers. At those two gatherings, Teresa did not see anything abnormal. Teresa believed defendant to be "a decent person."
Francisco met defendant in Mexicali in 1992. Francisco lived next door to defendant's uncle; defendant would visit his uncle approximately once per month. At times, defendant stayed at Francisco's house. Francisco had a daughter who was a teenager in 1992. Defendant did not have any contact with Francisco's children. Francisco believed defendant "interacted just fine" with Martha's children. Francisco opined that defendant was "a good person."
Defendant's brother, Sergio, opined that defendant acted "[j]ust normal like a dad" when defendant was with his daughters. Sergio never saw defendant acting unusual around children.
DISCUSSION
A. PRIOR ACT EVIDENCE
1. PROCEDURAL HISTORY
The prosecution filed a pretrial motion to admit evidence of defendant's prior sexual acts against Clarissa. (Evid. Code, § 1108.) The prosecution asserted that both M. and G. accused defendant of orally copulating them, and threatening them with different consequences if they told anyone what he had done. The prosecution alleged that Clarissa accused defendant of sexually abusing her on an almost daily basis from the time she was six years old until the time she was 12 years old. The prosecution wrote that Clarissa disclosed defendant had raped her, touched her, orally copulated her, and forced her to orally copulate him.
The prosecution argued that the evidence involving Clarissa was not more inflammatory than that involving M. and G., because (1) Clarissa was an adult, so the jury would not see her as a child, whereas the evidence related to M. and G. would be based on the children's testimonies; and (2) the acts performed on Clarissa were similar to those performed on M. and G. The prosecution argued that acts 30 years past have been held to not be too remote; therefore, the evidence involving Clarissa was not too remote, because it was approximately 14 years old. The prosecution argued the prior act evidence was probative because defendant told law enforcement he sexually abused M. and G. after their mother insisted that he do so. The prosecution reasoned the prior act evidence was relevant to disputing a theory defendant abused the children due to the Mother's insistence, because Clarissa had a different mother than M. and G.
Defendant's trial counsel argued the acts involving Clarissa were "vastly different," because Clarissa accused defendant of raping her "two or three times a week." Defendant's counsel asserted that since the actions involving Clarissa were "much more severe" than the charged offenses, the prior act evidence should be excluded.
The trial court granted the prosecution's motion. The trial court found the probative value of the evidence to be "quite powerful" in light of defendant's statement to the detective regarding his reasons for abusing the children. In regard to the remoteness in time, the trial court found the prior offense was "somewhat remote"; however, the court reasoned, "the fact this takes place in the context of a family mitigates that remoteness somewhat or explains it."
2. ANALYSIS
Defendant contends the trial court violated his due process right to a fair trial by allowing the prosecution to present evidence of the uncharged prior acts against Clarissa. (Evid. Code, § 1108.) We disagree.
"This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling 'falls outside the bounds of reason.' [Citation.]" (People v. Wesson (2006) 138 Cal.App.4th 959, 969.) A "reviewing court assesses the ruling based on the record before the trial court at the time" it issued its ruling. (People v. Lewis (2006) 39 Cal.4th 970, 998.)
Although defendant frames the issue as a constitutional violation, he also analyzes the issue as one involving the admissibility of evidence, and applies the abuse of discretion standard of review.
"Evidence Code section 352 gives a [trial] court the discretion to 'exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.) Factors that a trial court should consider when deciding whether to allow the presentation of prior sexual offense evidence are: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.]" (Id at p. 1117.)
We confine our review to the information provided prior to and during pretrial motions, since that was the information available to the trial court at the time it made its ruling. (People v. Lewis, supra, 39 Cal.4th at p. 998.) We begin with the first factor— probative value. The prosecution alleged that defendant told the detective he abused M. because R. insisted that he do so. Clarissa's testimony that defendant orally copulated her years earlier would tend to disprove defendant's reason for abusing M., because Clarissa had a different mother, and the oral copulation of Clarissa took place years before defendant met R. Since the evidence involving Clarissa tended to disprove defendant's reason for abusing M., the evidence had probative value.
The uncharged prior act evidence also had probative value due to the similarities between the offenses: the victims of the charged and uncharged acts were defendant's daughters and stepdaughter, and all the offenses involved acts of oral copulation. The similarities involved in the uncharged and charged offenses tended to show that defendant committed the charged crimes. Accordingly, the first factor is satisfied.
The second factor requires us to consider whether the evidence of the prior acts is stronger or more inflammatory than the evidence of the charged acts. The prior act evidence did not involve great detail. The prosecution asserted that defendant "almost daily" touched Clarissa's breasts and vagina, orally copulated her, raped her, or forced her to orally copulate him. However, there were few details regarding the circumstances of the events. Defendant's trial counsel offered the trial court some details regarding the rapes, but the prosecution's description of the prior acts was much more basic, e.g., defendant "put his tongue and penis inside of her vagina."
Although the prior act evidence involved various different sexual acts over a period of years, the trial court could reasonably conclude that it was not more inflammatory than the evidence of the charged offenses, because the prior acts were described in very basic ways—there were not inflammatory details regarding how the rapes occurred. Further, Clarissa was an adult testifying about being raped, while the evidence of the charged offenses involved children testifying. The testimony of a child would likely be more inflammatory than the testimony of an adult.
Although we must review the decision based on the information available to the court when it made its pretrial ruling, we think it is important to point out that when Clarissa testified she did not provide details about the prior acts. When Clarissa was asked to describe how defendant touched her, she said, "He would touch my breasts or my vaginal area or just would—he would pinch my breasts." When asked what else defendant did to her, Clarissa said, "He would make me perform oral sex. He would rape me. He would perform oral sex on me or make me perform oral sex on him."
As to the third factor—remoteness or staleness—"a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses. However, . . . significant similarities between the prior and the charged offenses may 'balance[] out the remoteness.' [Citation.]." (People v. Branch (2001) 91 Cal.App.4th 274, 285.) For example, a 30-year gap between the prior and charged acts was not considered too great when the defendant first molested his 12-year-old stepdaughter, and then a 12-year-old step-great-granddaughter. (Id. at pp. 284-285.)
In the instant case, the prior acts and the charged acts involved defendant orally copulating his biological daughters and stepdaughter between the ages of four and six years old. Given that defendant was performing the same sexual acts, and all the victims were his daughters, the approximate 20-year gap in the instant case is balanced by the similarities between the current and prior offenses.
The fourth factor is the likelihood that the prior act evidence would confuse the jury. The prior act evidence involved an adult testifying about events that occurred in the 1980s. While all the victims were defendant's daughters, Clarissa's age and the fact that she had a different mother from the victims in the charged offenses set her apart enough that it is unlikely the jury would be confused by the prior act evidence. In regard to the possibility that the jury would want to punish defendant for the prior acts, there were few details about the prior acts. Thus, it seems unlikely the jury would want to punish defendant, because there was little information to inflame the jury. The prosecution only offered evidence that the prior acts occurred, not evidence about how they occurred and what exactly happened. Accordingly, the trial court could reasonably conclude the prior act evidence would not confuse or distract the jury.
The fifth element is undue consumption of time. The prosecution asserted the principal evidence involving the prior acts would be Clarissa's testimony. Given that the prior act evidence would be largely proven by the testimony of a single witness, it was reasonable for the trial court to conclude the evidence would not consume an undue amount of time.
In sum, we conclude the trial court's decision to allow the prosecution to present evidence of the prior uncharged acts was reasonable, and therefore, we do not find an abuse of discretion.
People v. Marsden (1970) 2 Cal.3d 118.
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1. PROCEDURAL HISTORY
a) First Marsden Motion
At a pretrial hearing on May 21, 2009, defendant was represented by Deputy Public Defender Christine Villalobos. At that hearing, defendant made a Marsden motion. Defendant said that he was "not going to accept" Ms. Villalobos as his attorney. Defendant said he had spoken to "the supervisor of defense attorneys," and had been told he would be assigned "a state attorney." Defendant explained he did not "want an attorney from the County of San Bernardino," and he "would like a state attorney."
The trial court explained to defendant, "There is no state public defender's office that represents criminal defendants in trial." The trial court said there is a public defender's office, and a conflict panel of attorneys that are available when the public defender's office has a conflict of interest with a client. After offering the foregoing explanation, the trial court asked defendant to clarify what he meant by a "state attorney versus a county attorney." Defendant responded, "The only thing I need is a state attorney."
The trial court again explained that the state does not provide trial attorneys for criminal defendants. Defendant then asked if he could have an attorney other than Ms. Villalobos. Defendant explained, "[T]here's been other people that's gone to prison because of [Ms. Villalobos], who's not investigating this case. And she's—he's gone to prison for many years for not doing the appropriate investigations. He was given a hundred—Mr. Gaton (phonetic), a man being innocent."
Ms. Villalobos explained that the case to which defendant referred involved a 17-count information against a defendant accused of molesting his five daughters, and that the defendant's appeal "was denied." The trial court explained that defendant could not receive a new attorney based on the attorney's performance in a different case. Accordingly, the trial court denied defendant's motion.
b) Second Marsden Motion
On June 25, 2009, another pretrial hearing took place. Defendant was represented at the hearing by Ms. Villalobos. At the hearing, defendant made a second Marsden motion. Defendant explained, "My life has been threatened. I told my attorney, and she has not investigated that case. And that's part of my case. That's why I need a state-appointed attorney." The trial court again explained, "There are no state attorneys. There are county attorneys, which you have." The trial court asked if someone had threatened defendant in connection with the instant case or someone in jail, and defendant responded, "Related to the case." The trial court suggested defendant contact law enforcement if his life had been threatened, but the trial court agreed to have an in-chambers Marsden hearing.
In the trial court's chambers, defendant said he was "threatened by the father of the eldest girl." Defendant believed the "man works for the Mexican Mafia." Ms. Villalobos informed the trial court the threat occurred "before this case." Ms. Villalobos explained the threat was not active, "[t]here's nothing to investigate," and she feared breaking attorney-client privilege if she explained the situation to the prosecutor. Defendant said the threats occurred in September 2007. Defendant was arraigned in the instant case on October 28, 2008, and he was housed in protective custody. The trial court asked defendant what exactly he wanted Ms. Villalobos to be doing. Defendant said, "I have asked her to investigate."
Next, defendant and Ms. Villalobos explained that R. may have jumped over a fence at a home where narcotics officers were executing a warrant. Ms. Villalobos said the information might be relevant to R.'s character, but defendant did not know when the incident occurred, or what law enforcement agency might have been involved. Ms. Villalobos said defendant gave her the information when she spent two hours with him at the jail, and he gave her a "long list of people he wants to have interviewed." Ms. Villalobos explained she had not completed the interviews yet, in part because most of the people were Spanish speakers and she needed a Spanish speaking investigator to conduct the interviews.
The trial court said to defendant, "I am not hearing anything that makes it sound like your attorney here is not doing the job you have asked." The trial court again explained to defendant there are no state public defenders; rather, there are county public defenders. The trial court also explained that Ms. Villalobos could not prosecute people for making threats against defendant.
Defendant explained he feared for his family's safety, which is "why [he was] asking for a state attorney." Defendant "believe[d] that a state attorney would be able to get the truth so that they can get the person that really is the killer and that's bringing drugs here for all the children." The trial court responded, "That's a different case." Defendant said at one point he had been offered a six-month sentence, but he rejected it "because of that threat if [defendant] got out [he] would be dead and so would [his] family."
Ms. Villalobos explained that early in the case defendant had been offered probation pending a psychologist's report. (§ 288.1.) However, "the report was not positive" and "another victim" came forward, so defendant was facing a possible life sentence. Ms. Villalobos said defendant was struggling to understand how the matter changed from possible probation to a possible life sentence.
The trial court explained to defendant that he was "asking for the impossible," because "[t]here are no state attorneys to appoint." The court questioned Ms. Villalobos and a supervisor from the public defender's office about how they would proceed if they received information about a specific threat being made against defendant. The supervisor, Mr. Canty, explained they would likely have an obligation to report the information to law enforcement.
At that point, defendant gave the full name of the person he accused of threatening him, explained that the person crosses into the United States from Mexico with fake passports, and that the person was involved in a murder related to controlled substances. Ms. Villalobos said she did not know what to do with the information. The trial court said if there was credible evidence of the threats, then there might be a duty to report the information to law enforcement. At that point, the hearing ended.
c) Trial
At trial, defendant was represented by Deputy Public Defender James Carson. During pretrial motions, Mr. Carson asked if defendant could address the court. The court permitted defendant to speak. Defendant said, "Your Honor, I was a foster parent with Martha . . . . And I wish . . . for them to present the children that I had under my care so they can give testimony regarding my conduct and my behavior. That is very important to me. And the reason is that I never touched [G.], I just kissed M.—" At that point, Mr. Carson interrupted defendant and instructed him not to discuss the facts of the case. Mr. Carson also said to defendant, "You want to get in some further discovery, correct? Then keep it to that." Defendant responded, "That's all I wanted to tell the Court," but then said, "I asked Counsel to please present that evidence."
Mr. Carson told the court the issue with the foster children had recently arisen, and he did not "think there [was] a chance in Hades any judge is going to open up foster children's files to get witnesses who are not [percipient] witness[es]." The trial court agreed that the defense "would face an extraordinarily high burden." The trial court then spoke to defendant regarding accepting a plea deal.
d) Third Marsden Motion
On April 1, 2010, defendant's sentencing hearing took place, and defendant was represented by Mr. Carson. At the beginning of the hearing, Mr. Carson informed the court that defendant was requesting substitute counsel for purposes of filing a motion for new trial. The court asked if defendant had specific allegations of ineffective assistance of counsel that he would like to assert. Mr. Carson suggested that defendant speak directly to the court.
Defendant said to the court, "I need an opportunity so I can present the truth, according to the code [section] 1181. I request for a new trial. According to the Penal Code [section] 987.5 for a state-appointed attorney for lack of investigation in my case." The trial court denied defendant's motion for a new trial, and defendant's request for substitute counsel. The court explained it had "no basis to believe that Mr. Carson has been ineffective based on anything presented in court. Furthermore, a generic complaint that there was insufficient investigation in [the] case is, on the face of it, not credible, based on the fact that there was a somewhat extensive defense case presented here. And the Court was familiar with the progress of the case up to the time it came to trial and was aware of Mr. Carson's many efforts to investigate. And in fact, there was a continu[ance] granted for further investigation." The prosecutor and Mr. Carson confirmed multiple continuances had been granted for investigatory purposes.
2. ANALYSIS
Defendant contends the trial court violated his Sixth Amendment right to counsel when it denied his request for substitute counsel to prepare a motion for new trial, based on ineffective assistance of counsel, and failed to adequately inquire into the basis for defendant's motion. The People agree the trial court erred, but assert that the error was harmless. We disagree with defendant and the People, and conclude the trial court did not err.
"'"'"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. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result."' [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would 'substantially impair' the defendant's right to effective assistance of counsel."' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 878.)
Here, the record reflects that the court asked Mr. Carson, "Your client has specific allegations of ineffective[] assistance that he wants to raise to the Court?" Defendant then spoke directly to the court, and explained he wanted a new trial and a "state-appointed attorney" due to a lack of investigation in his case. Accordingly, the court allowed defendant to explain the reasons for his dissatisfaction with counsel. With respect to defendant's complaint of inadequate investigation, the trial court stated it was familiar with the development of the case, and believed an adequate investigation had been done. Given that the trial court """"permit[ted] the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance,"'"'" we conclude the trial court followed the proper procedures. (People v. Vines, supra, 51 Cal.4th at p. 878.)
Further, the record reflects Mr. Carson presented six character witnesses on behalf of defendant, and continuances were granted for the defense to conduct further investigations on April 3, 2009, and January 11, 2010. Given that the record reflects a concerted effort on the part of defense counsel to prepare a defense for defendant, it was within the bounds of reason for the trial court to deny defendant's Marsden motion. In other words, the trial court did not abuse its discretion in denying defendant's motion.
Defendant faults the trial court for not asking follow-up questions regarding Mr. Carson's alleged ineffective assistance. We do not find this argument persuasive, because the trial court complied with the Marsden requirements, and gave defendant the opportunity to explain his specific reasons for asserting ineffective assistance of counsel. It does not appear from the record that the trial court stopped defendant from speaking, or otherwise interrupted defendant's opportunity to explain his theories. Further, after the trial court stated its reasons for denying the motion, the trial court asked, "Are we ready to proceed to sentencing?" Defendant did not say he had further reasons to offer in support of his Marsden motion. In sum, defendant was given an opportunity to explain his specific reasons why he believed Mr. Carson was ineffective, as required at a Marsden hearing, and therefore, we find no error in the trial court not asking follow-up questions.
The People assert the trial court erred because it denied defendant's Marsden motion "without asking [defendant] to relate any specific instances of the alleged failure to investigate." While follow-up questions can be helpful in a Marsden hearing, they are not necessary when there is nothing indicating that follow-up questions will uncover specific examples of inadequate representation. (People v. Miranda (1987) 44 Cal.3d 57, 77, abrogated on an instruction issue in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) In the instant case, defendant alleged Mr. Carson performed an inadequate investigation; however, Mr. Carson presented six character witnesses on behalf of defendant, and the defense received two continuances for investigatory purposes. Given that the record reflects a multiple witness investigation on the part of the defense, we conclude it was reasonable for the trial court to not ask defendant follow-up questions regarding his investigation allegation. In sum, we find the People's argument to be unpersuasive.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLERJ. We concur:
RAMIREZ P. J.
McKINSTER J.